Sunkara Sridevi

1 O.S.386/2007

In the Court of the Addl. Senior Civil Judge: Narasaraopet,

Present:- Smt. Sunkara Sridevi, Addl. Senior Civil Judge, Narasaraopet,

Monday, this the 20th day of September, 2021

Original Suit No.386/2007 Between:

Dhulipudi Raghupathi Rao…Plaintif

And

1. Dhulipudi Venkata Rathamma

2. Dhulipudi Rama Mohana Rao

3. Dhulipudi Maheswari

4. Dhulipudi Rambabu

5. Dhulipudi Radha Krishna Murthy (died) (Defendants 28 to 31 added being the legal heirs of the 5th defendant as per orders passed in I.A.139/2013 dt.6-1-2016)

6. Dhulipudi Prameela

7. Dhulipudi Ravindra Babu

8. Dhulipudi Lakshmipathi Rao

9. Kalakanda Vijayalakshmi

10. Kolagani Sambrajya Lakshmi

11. Dhulipudi Venkateswararao (died)

12. Kunche Sivaleela

13. Kunche Vijaya Kumar

14. Kunche Rajeswararao

15. Kunche Ramakrishna Prasad

16. Kola Krishna Murthy

17. Pasupuleti Narasimharao

18. Adapala Ramaiah

19. Sidha Yallamanda

20. Shaik Shamshuddin

21. Karupilla Gangaiah

22. Pasupuleti Lakshmaiah

23. Adapala Bhoodevi

24. Kola China Venkateswarlu

25. Sidha Venkateswaramma

26. Boddepudi Siva

27. Uppala Naga Malleswararao (died)

28. Dhulipudi Venkayamma

29. Dhulipudi Srinivasarao

30. Kunche Kanaka Durga

31. Challa Sambrajya Lakshmi

32. Arisetty Nagaraja Kumari

33. Arisetty Pratap

34. Madduri Indira Devi

35. Parasula Prabhavathi

36. Konapalli Vijayalakshmi

37. Aadapa Haranath Babu

38. Rudrothu Naga Nagaraja Kumari (died) 2 O.S.386/2007

39. P.Venkata Lakshmi

40. Kuricheti Venkata Vijayalakshmi

41. Dhulipudi Nagamalleswari

42. Vishnumolakala Sambrajya Lakshmi

43. Rudrothu Natraj Srinivasarao

44. Dhulipudi Malleswari

45. Dhulipudi Ramesh Babu

46. Dhulipudi Hemalatha

47. Dhulipudi Sriramulu (Defendants 44 to 47 are added being the legal heirs of the 11th defendant as per orders in I.A.48/2020 dt.28-12-2020)

...Defendants

This suit is coming on 7-9-2021 before me for arguments in the presence of Sri S. P.Anjaneya Chowdary, Sri S.G.S.P. Nageswararao, Advocate for the defendants 5 and 20, 28 to 31, Sri B.Anil Kumar, Advocate for the defendants 6 and 7, Sri K.Narapareddy, Advocate for 12th defendant, Sri S.V.Ramana Reddy, Advocate for 13th defendant, Chandra Anjaneyulu Advocate for the defendants 8 and 27, Sri M.Srinivasarao, Advocate for the 29th defendant, Sri J.S.Ganesh, Sri G.V.Subrahmanyam, Advocate for the 37th defendant, Advocate for the defendants 44 to 47, the defendants 1 to 4, 9 to 11, 14 to 19, 21 to 26, 32 to 36, 39-43 remained exparte and upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a suit filed for partition of the plaint schedule properties i.e., A schedule properties into five equal shares and to allot 1/9th share to the plaintif along with the defendants 1 to 15 in 1/5th share of plaintif’s father and B schedule properties into nine equal shares and to allot one such share to the plaintif and defendants 1 to 15 with separate possession and for costs.

02.Initially the suit was got filed against 27 defendants, subsequently as per the orders in I.A.139/2013 dt.6-1-2016, the defendants 28 to 31 were added as legal heirs of deceased 5th defendant. The defendants 32 to 42 are also added as per the orders in I.A.642/2016 dt.3-8-2017. The defendants 44 to 47 are 3 O.S.386/2007 added as legal heirs of deceased 11th defendant as per the orders in I.A.48/2020 dt.28-12-2020.

The brief averments of the plaint are as follows:

03.(a)The plaintif Dhulipudi Raghupathi Rao, Dhulipudi

Satyanarayana(deceased), Dhulipudi Radhakrishna Murthy (deceased D5), Dhulipudi Venkata Gopalarao (deceased), Dhulipudi

Lakshmipathi Rao(D8), Dhulipudi Venkateswararao (deceased D11) are the sons and Kunche Ranganayakamma (deceased), Kalakanda

Vijayalakshmi(D9) and Kolagani Samrajya Lakshmi(D10) are the daughters of Dhulipudi Sreeramulu. Out of them, Satyanarayana,

Venkata Gopalarao and one daughter by name, Kunche

Ranganayakamma are no more as on the date of filing of the suit.

The marriages of all the three daughters of late Sreeramulu were performed during his life time long ago and they were given some properties, gold and money, out of the joint family properties and funds of Sreeramulu at the time of their respective marriages.

Defendants 1 to 4 are the legal heirs of late Dhulipudi

Satyanarayana. Defendants 6 and 7 are the legal heirs of

Dhulipudi Venkata Gopalarao. Defendants 12 to 15 are the legal heirs of late Kunche Sitaramaiah, s/o Radhakrishna Murthy and

Kunche Ranganayakamma.

(b)The joint family properties of late Dhulipudi Sreeramulu were got partitioned during his life time between himself and his sons under a partition list dt.10-5-1957, as such there is no dispute with regard to the ancestral properties.

4 O.S.386/2007

(c)The father of the plaintif late Sreeramulu purchased

Item No.1 of A schedule property and Item No.2 of A schedule property jointly with one Puligujjula Venkataiah, s/o Pothaiah,

Kunche Sitharamaiah, 8th defendant and Dhulipudi Gopalarao from the same person under a registered sale deed dt.21-7-1959 with the 5thdefendant, Dhulipudi Satyanarayana and Kunche

Sitharamaiah from one Goapaluni Ramalingaiah, s/o Venkata

Krishnaiah under a registered sale deed dt.11-7-1959. The father of the plaintif had 1/5th share in A schedule properties as he died intestate. The plaintif has 1/9th share in the 1/5th share of his father along with his brothers and sisters.

(d)The father of the plaintif also purchased B schedule properties from one Sristhi Ramaiah, s/o Venkatappaiah of

Annasamudram village under a registered sale deed dt.27-7-1962.

The plaintif has 1/9th share in the B schedule properties along with his brothers and sisters beings the legal heirs of his demised father who died intestate. The A and B schedule properties are in joint possession and enjoyment of the plaintif and defendants 1 to 15.

The defendants 1 to 15 are the co-sharers in A and B schedule properties along with the plaintif. The defendants 16 to 27 are added as parties as the defendants 1 to 8 and 11 to 15 are trying to alienate the properties in their favour. Any document created by the defendants 1 to 8 and 11 to 15 in favour of the defendants 16 to 27 are nominal and sham and created only to defeat the legal claim of the plaintif over the plaint schedule properties. Such documents even if executed without the consent of co-sharers, the 5 O.S.386/2007 same are not binding on the plaintif and they are not valid under law.

(e)The plaintif demanded the defendants 1 to 15 orally on several times both personally and through mediators to cooperate with him for partition, for which they did not cooperate and also did not come forward for partition of the properties. Finally, he got issued a legal notice on 1-2-2007 demanding the defendants 1 to 15 for partition of A and B schedule properties which was acknowledged by some of the defendants and they did not choose to give any reply and some of the notices are returned unserved.

Hence, the present suit for partition of A and B schedule properties.

04.The defendants 1 to 4, 9 to 11, 14 to 19, 21 to 26, 32 to 36, 39-43 remained exparte. The 5th defendant died and the defendants 28 to 31 are added as legal heirs of 5th defendant. The 11th defendant died and the defendants 44 to 47 are added as the legal heirs of 11th defendant. The 27th defendant died, but no steps were taken against him and case is abated against him on 17-8-2021. The 38th defendant died and his legal heir defendant

No.43 is already on record.

The brief averments of the written statement filed by the 5th defendant are as follows:

05.He denied all the allegations except the relationship between the parties and also the fact of joint family properties of late Dhulipudi Sreeramulu which were got partitioned under a partition list dt.10-5-1957 in respect of their ancestral properties.

It was also admitted that A schedule properties were jointly 6 O.S.386/2007 acquired in the names of some of the defendants including 5th defendant and late Sreeramulu. Further, B schedule properties were purchased by late Sreeramulu on his own. The submission of the 5th defendant is that after the death of Sreeramulu, all the legal heirs of Sreeramulu efected a partition in the presence of elders and common friends. In pursuance of the oral partition, their respective shares were sold by themselves long back. There is no piece of land to be partitioned again. This is all to the knowledge of the plaintif and other brothers and other family members.

Though alienations were made long ago and several transfers were efected, the plaintif did not try to challenge the same nor refer the same in the plaint. Therefore, the plaintif has guilty of suppression of real facts. The framing of suit is not maintainable.

The cause of action is barred by limitation. The stamp duty paid is insufficient. The suit is aimed to harass the bonafide purchasers to extract some more money by taking advantage of the boom in the real estate market. Hence, the suit is liable to be dismissed with costs.

The brief averments of the written statement filed by the defendants 6 and 7are as follows:

06.The submissions of these defendants is that late

Dhulipudi Sreeramulu and his wife died intestate long back. They had five sons, namely, Raghupathirao(plaintif), late

Satyanarayana, Radhakrishan Murthy(D5), late Gopalarao,

Dhulipudi Lakshmipathi Rao(D8), Dhulipudi Venkateswararao(D9) and three daughters. The 7th defendant is the only son and 6th 7 O.S.386/2007 defendant is the widow of late Dhulipudi Gopalarao. The plaint A schedule property was jointly purchased by late Dhulipudi

Sreeramulu, Radhakrishna Murthy, Raghupathirao, late

Satyanarayana and Kunche Sitharamaiah from Gopaluni

Ramalingaiah under a registered sale deed dt.11-7-1959 vide

Doc.No.1110/1959. These defendants jointly entitled a share in the 4/5th joint share of late Dhulipudi Sreeramulu and his sons.

Late Sreeramulu purchased Items 1 to 4 of plaint B schedule property from Sristhi Ramaiah, s/o Venkateswarlu under a registered sale deed dt.27-7-1962. As the paternal grandfather of these defendants died intestate, these defendants are entitled to the share of his deceased father Goapalarao in the properties of

Sreeramulu. The plaintif never demanded them for partition of the property. Hence, the suit may be decreed as prayed for, but without costs.

The brief averments of the written statement filed by the 8th defendant are as follows:

07.(a)He denied all the allegations in the plaint except the relationship between the parties and the partition of joint family properties of Sreeramulu during his life time under a partition list dt.10-5-1957 and the purchase of A and B schedule properties as referred in the plaint. The submission of the 8th defendant is that father of the plaintif Sreeramulu partitioned his ancestral properties amongst his sons including the plaintif on 10-5-1957.

After separation of their family properties, late Sreeramulu purchased A schedule properties under registered sale deed dt.11-7-1959 with his own money, but got it registered not only of 8 O.S.386/2007 his name but also four others at his choice. In fact, those persons to the sale deed have not shared any amount of sale consideration.

They are only name lenders and that they have no right or title in the A schedule property on par with Sreeramulu. The said

Sreeramulu also purchased B schedule property from one Sristi

Ramaiah under a registered sale deed dt.27-7-1962. Thus, both A and B schedule properties are the self acquired properties of late

Sreeramulu and he had been in possession and enjoyment of the same with absolute rights.

(b)The submission of the 8th defendant in further shows that the father of the plaintif Sreeramulu along with his son

Satyanrayana, Tanneru Venkata Subbaiah and Pulugujju Venkaiah also purchased Ac.2.00 cents of land situated in Vinukonda town from one Jonnalagadda Narasaiah and others under a registered sale deed dt.15-3-1959. The said property has not been included in the present plaint schedule. As such the suit is liable to be dismissed as partial partition is not maintainable in law. One

Agnigundala Venkata Rangarao of Agnigundala village filed the suit in O.S.13/1963 on the file of Principal Subordinate Judge Court at

Narasaraopet against the father of the plaintif Sreeramulu for recovery of amounts due to him and got obtained a decree against him. He also filed E.P.135/1975 against his five sons, namely,

Satyanarayana, Radhakrishna Murthy, Venkata Gopalarao,

Lakshmipathirao and Raghupathirao against the property of A schedule, as Items 2 to 4 of the B schedule properties were bequeathed to these defendants under an unregistered Will 9 O.S.386/2007 dt.4-2-1969. Pending execution proceedings at the stage of sale of

E.P schedule property, this defendant intends to retain the properties, alone paid Rs.5,300/- to the Decree holder on 16-2-1977 towards full and final satisfaction of the decree in addition to the payment of poundage and other expenses nearly

Rs.475/-. In fact, this defendant paid the said amount by sale of his Ac.1.00 cents of wet land in Chilumuru village on 6-9-1976 under possessory agreement of sale and consequent registration of a regular registered sale deed vide Doc.No.705/1987 dt.30-4-1987.

This defendant filed E.A109/1977 and it was allowed on 27-11-1978 by setting aside the sale and all the five sons were in possession of the property, but the other four sons failed to pay their share of amount under the said decree discharged by the 8th defendant. This defendant got filed O.S.137/1981 on the file of

District Munsif Court at Narasaraopet against Satyanarayana,

Radhakrishna Murthy, Venkata Gopalarao and Raghupathi Rao for contribution of their share of amount which was decreed against them. On that, 5th defendant having received Rs.2,000/- from the 8thdefendant executed an unregistered sale contract dt.26-4-1985 in favour of 8th defendant in respect of Ac.3.50 cents in A schedule property. Later, 8th defendant sold away Ac.15.00 cents out of A schedule property to one Nagandla Sambasivarao of

Timmapuram under a registered sale deed who has been in possession and enjoyment of the said property. The 8th defendant also gifted an extent of Ac.7.00 cents in A schedule property including the above Ac.3.50 cents purchased from his brother

Radhakrishna Murthy to his wife Dhulipudi Kameswaramma under 10 O.S.386/2007 a registered gift deed dt.8-11-2002. The said gift was accepted and acted upon. Ever since the said Kameswaramma has been in peaceful possession and enjoyment of the said property with all rights. So also, the other defendants had sold away their shares to diferent persons. The plaintif is well aware about the said facts and intentionally filed the present suit as the properties are in joint possession. The suit is bad for non-joinder of Nagandla

Sambasivarao and Dhulipudi Kameswaramma and others, as such the suit is liable to be dismissed on that score.

(c) The submission of the 8th defendant lastly shows that with regard to Items 2 to 4 of B schedule properties, the father of 8th defendant Sreeramulu during his life time executed an unregistered Will dt.24-2-1969 bequeathing the said property to the 8th defendant as he looked after his welfare in his last days and also asked him to bear all the expenses of his last ceremonies after his demise. Late Sreeramulu died testate on 2-4-1974 in respect of

Items 2 to 4 of the B schedule properties. By virtue of the said Will, 8th defendant became absolute owner of Items 2 to 4 of the B schedule properties and he has been in possession and enjoyment of the said property with all rights. The revenue authorities recognized his right, title and possession and issued rytwari patta in his favour. As the suit schedule properties are under the possession of diferent persons, they are all proper and necessary parties to the suit. The suit is bad for non-joinder of proper and necessary parties. There is no cause of action to file the suit. The court fee paid is not correct. The plaintif ought to have paid the 11 O.S.386/2007 court fee U/s.34(1) of A.P.C.F and S.V.Act, in view of the possession of the schedule properties are with diferent persons as admitted.

Hence the suit is liable to be dismissed with costs.

The brief averments of the written statement filed by the 12th defendant are as follows:

08.Except the relationship between the parties and the acquisation of properties by late Sreeramulu under two diferent sale deeds the remaining allegations are refuted by the 12th defendant. The submission of the 12th defendant is that Puli

Venkaiah, Kunche Subrahmanyeswararao, Dhulipudi Sreeramulu,

Dhulipudi Lakshmipathirao and Dhulipudi Gopalarao divided their properties into five equal shares and enjoyed their respective shares without any one’s interference. The revenue authorities also issued rytwari passbook to the co-sharers in respect of their propertiesindependently.On17-5-1985Dhulipudi

Lakshmipathirao sold his share to one Nagandla Sambasivarao for valuable consideration of Rs.30,000/-and executed a registered sale deed vide Doc.No.993/1985. Since then the said Sambasivarao has been in possession and enjoyment of the said property. On 24-2-1983, 1st defendant sold away her share of property to

Pasupuleti Krishna Murthy under a registered sale deed vide

Doc.No.519/1983. So, the alleged joint possession of A and B schedule properties of the plaintif, defendants 1 to 15 does not arise. This defendant is the mother of 13th defendant. They got their share of property through their ancestors. They sold away their portion of property to -- 12 O.S.386/2007

1.Pasupuleti Lakshmaiah(D22)Ac.3.00 centsDt.27-11-2006 Doc.No.7031/2006

2.Adapala Bhoodevi(D23)Ac.3.00 centsDt.27-11-2006 Doc.No.7032/2006

3.Kola Krishna Murhty (D16)Ac.3.00 centsDt.27-11-2006 Doc.No.7033/2006

4.Kola China VenkateswarluAc.1.00 centsDt.27-11-2006 Doc.No.7035/2006

5.Sidha VenkateswarammaAc.3.00 centsDt.27-11-2006 Doc.No.7035/2006

6. Boddapati SivaAc.2.00 cents Dt.27-11-2006 Doc.No.7036/2006

The property was delivered to the respective vendees prior to the filing of the suit. So, the suit itself not maintainable under law and there are three co-sharers of A schedule property already sold away their property. This defendant sold away her share of property after receiving sale consideration. The suit was got filed for wrongful gain to harass the defendants. Hence, the same is liable to be dismissed with costs.

09.The averments of the written statement filed by the 13th defendant are replica to the written statement of 12th defendant.

The brief averments of the written statement filed by the 20th defendant are as follows:

10.(a)He denied all the allegations in the plaint and contended that the properties of Dhulipudi Sreeramulu were divided among Sreeramulu, plaintif and defendants 1 to 8. During the life time of Satyanarayana, the properties of Sreeramulu were divided among his sons and they used to enjoy the properties independently. There is no joint family property of late Dhulipudi

Sreeramulu to be partitioned between the legal heirs of

Sreeramulu. More than 50 years ago, partition was efected. The 13 O.S.386/2007 schedule property is not the joint family property of Sreeramulu and his sons including the plaintif. The suit is misconceived one to cause loss and damage to the defendants.

(b)On 29-8-1984, the 5th defendant executed a registered settlement deed in favour of his son Srinivasarao and from that date of settlement, the said Srinivasarao had been in possession and enjoyment of the property which is Ac.15.00 cents in S.No.55/1 and 55/10 of Chowtapalem Agraharam village of Vinukonda mandal. The settlement deed was registered as document

No.3501/1984. The said document was acted upon and the said

Srinivasarao was in continuous possession and enjoyment of the property covered under the settlement deed. On 19-1-2005 for valid consideration, this defendant obtained a registered sale deed by paying a sum of Rs.3,300/- towards the sale consideration and obtained possession and he has been enjoying the said property till the date of his purchase. Due to the diferences among the family members of the plaintif, he got filed this false suit with false allegations. Before filing of the present suit, the plaintif got issued a notice on 1-2-2007. On receipt of the said notice, when this defendant questioned him about his right, he represented that he is going to withdraw the notice and subsequently demanded to pay huge amount or otherwise he will cause inconvenience to this defendant and threatened him with dire consequences. When this defendant wants to initiate legal proceedings against the plaintif to protect his unlawful acts, he got filed the suit with false and frivolous allegations. His submission lastly shows that there is no 14 O.S.386/2007 limitation to file the present suit. There is no joint and constructive possession as alleged in the plaint. The suit is misconceived for non-joinder and mis-joinder of necessary parties. There is no valid cause of action for filing the suit. Hence the suit is liable to be dismissed with costs.

The brief averments of the written statement filed by the 27th defendant are as follows:

11.He denied all the allegations in the plaint except the purchase of B schedule properties by the father of plaintif from one Sristhi Ramaiah under a registered sale deed dt.27-7-1962.

The submission of 27th defendant is that the father of the plaintif

Dhulipudi Sreeramulu during his life time, sold away his properties to his second son i.e., 5th defendant under an agreement of sale dt.15-11-1971 in respect of B schedule properties and delivered possession of the same and ever since the 5th defendant had been in peaceful possession and enjoyment of the same. The said

Dhulipudi Sreeramulu died more than 35 years back. Thereafter, the 5th defendant for his family necessities sold away Item No.1 of

B schedule property to this defendant under a registered sale deed dt.21-5-1980 for valid consideration and ever since this defendant has been in possession and enjoyment by paying necessary taxes.

The revenue authorities recognized his possession and enjoyment and also issued title deed and pattadar passbook to this defendant.

He also availed loan from Andhra Bank, Medapi and he is a bonafide purchaser. This defendant also sold away some of the extent in item No.1 of B schedule to third parties. He sold away

Ac.5.00 cents to one Vaka Veeraiah of Ayyangaripalle under a 15 O.S.386/2007 registered sale deed dt.20-5-1985, Ac.1.50 cents to one Kavuluri

Naga Brahmachari of Ayyangaripalle, Ac.3.00 cents to Magam

Brahmaiah of Chowtapacherla, Ac.4.25 cents to Maguluri

Ramulamma of Siddhannapalem under diferent sale deeds at various dates and since then the respective purchasers have been in possession and enjoyment of their properties which is known to all including the plaintif. The other items of B schedule properties are under the possession and enjoyment of diferent ryots as the 5th defendant sold away. In fact, some court litigation had taken place about 20 years back in between this defendant and third parties in respect of Item No.1 of B schedule properties and ultimately he succeeded in the said litigation.

(b)The submission of this defendant in further shows that 5th defendant having sold away all of his properties got filed the suit through his brother in a collusive manner to harass this defendant and others in view of hike in prices and also to have wrongful gain and to black mail them. In fact, the plaintif does not know the existence of suit schedule lands and its possession. As the properties are under possession of the persons named above so far as Item No.1 is concerned they are necessary and proper parties to the suit. The suit is bad for non-joinder of proper and necessary parties and there is no cause of action to file the suit.

The court fee paid is not correct. The plaintif ought to have paid the court fee U/s.34(1) of A.P.C.F and S.V.Act. Hence the suit is liable to be dismissed with costs.

16 O.S.386/2007

The brief averments of the written statement filed by the 29th defendant are as follows:

12.Except the relationship between the parties all the other allegations are denied by this defendant. His submission is that the schedule properties were orally partitioned after the death of

Sreeramulu between the respective shareholders in the presence of elders and common friends. In pursuance of the oral partition, their respective shares were sold away themselves long back and the same is known to all the parties and their family members.

This defendant’s father late Radhakrishna Murhty executed a gift deed with regard to the schedule property in favour of 29th defendant on 29-8-1984 and delivered possession. He inturn sold away the same to Shaik Shamshuddin who is 20th defendant under a registered sale deed dt.19-1-2005 and possession was delivered to him. 5th defendant also sold some of the property to Karupilla

Gangaiah i.e., 21st defendant under a registered sale deed dt.6-1-2006 and possession was delivered to him. The suit is bad for non-joinder of necessary parties who are legal heirs of late

Sreeramulu, namely, Dhulipudi Venkateswararao, s/o late

Sreeramulu. The 8th defendant has no share in the A schedule property, but being the legal heir of Sreeramulu he will get share of his father. The 8th defendant filed the suit in O.S.137/1981 on the file of D.M.C., Narasaraopet against the father of 29th defendant and others. But the father of 29th defendant deposited his share of amount before the court and 8th defendant also obtained agreement of sale from the father of 29th defendant with regard to the security of the said amount. But, the 8th defendant sold the 17 O.S.386/2007 same in an extent of Ac.3.50 cents without cancellation of the said agreement of sale. The plaintif, his brothers Radhakrishna Murhty and Venkata Gopalarao sold an extent of Ac.30.00 cents under an agreement of sale dt.6-5-1985 to Gundemeda Janardhanarao and two others as bill contract of Rs.1,73,625/-, but the purchasers did not perform their part of contract. The father of 29th defendant paid share of his earnest money, but the plaintif did not return his share to the purchasers. As such they have occupied his share of property. Apart from that, on 5-5-1985, the said three members sold an extent of Ac.15.00 cents under an agreement of sale to one

Devarakonda Pitchaiah and Konatham Narasaiah and others.

Later, the purchasers did not come forward to perform their part of contract and the father of 29th defendant returned his share of amount to the purchasers, but the plaintif and Gopalarao did not return the same and as such the purchasers occupied their share of property and have been in possession and enjoyment. As such there is no property available for partition. The plaintif by suppressing all the real facts, got filed the present suit for wrongful gain. The suit frame is not maintainable under law. The cause of action is also barred by limitation. The stamp duty paid is insufficient and the suit is aimed to harass the bonafide purchasers to extract some more money by taking advantage of the boom in the real estate market. Hence, the suit is liable to be dismissed with costs.

The brief averments of additional written statement filed by the th defendant are as follows:29 18 O.S.386/2007

13.He denied all the allegations in the neat copy of the plaint and contended that all the properties which are situated at

Vinukonda i.e., house sites were not shown in the suit. The suit is bad for non-joinder of necessary parties and not showing all the properties. As such the suit is liable to be dismissed.

The brief averments of the written statement filed by the 45th defendant adopted by the defendants 44, 46 and 47 are as follows:

14.He denied all the allegations except the relationship between the parties and acquisation of properties by late

Sreeramulu after the family partition amongst his sons under a partition list dt.10-5-1957. The submission of 45th defendant is that late Dhulipudi Sreeramulu purchased Item No.1 of plaint A schedule property and Item No.2 jointly with one Puligujjula

Venkaiah, Kunche Sitaramaiah, 8th defendant and Dhulipudi

Gopalarao from the same person under a registered sale deed dt.21-7-1959, with the 5th defendant Dhulipudi Satyanarayana,

Kunche Sitharamaiah from one Gopaluni Ramalingaiah under a registered sale deed dt.11-7-1959. Thus, Dhulipudi Sreeramulu got 1/5th share in plaint A schedule properties as late Sreereamulu died intestate, this defendant’s father got 1/9th share in the 1/5th share of his father along with his brothers and sisters. Hence, this defendant’s father is also entitled to get 1/9th share in the 1/5th share of his father and for separate share along with his brothers and sisters, similarly, the B schedule properties along with his brothers and sisters. The alleged unregistered Will with regard to the Items 2 to 4 of B schedule properties by Sreeramulu during his life time in favour of 8th defendant Dhulipudi Lakshmipathirao is 19 O.S.386/2007 neither true nor valid and does not binding on the children of

Dhulipudi Sreeramulu. In fact, late Sreeramulu died intestate without executing any document. Since the paternal grandfather of 45th defendant died intestate on 2-4-1974, according to Hindu

Succession Act, the plaintif and defendants 1 to 15 are being the legal heirs entitled for the partition as prayed for and they have no objection for partition of plaint A and B schedule properties as prayed for.

15.Basing on the above pleadings, following issues are settled on 17-8-2010 by my predecessor in office for trial:

1. Whether the plaintif is in joint possession and enjoyment of the plaint schedule properties ?

2. Whether the earlier partition in between the family members of Dhulipudi Sreeramulu as mentioned in written statement is true and correct and binding on the plaintif ?

3. Whether the suit is bad for non-joinder of necessary parties ?

4. Whether the court fee paid is correct ?

5. Whether the plaintif is entitled for partition as prayed for ?

6. To what relief ?

16.On behalf of the plaintif, P.W.1 is examined and Exs.A1 to A24 are marked. On behalf of the defendants, D.Ws.1 to 6 are examined and Exs.B1 to B33 are marked.

20 O.S.386/2007

17.P.W.1 is Dhulipudi Raghupathirao (plaintif). Ex.A1 is the office copy of legal notice dt.1-2-2007. Ex.A2 are the unserved returned covers from the defendants 3 to 5 and 12. Ex.A3 are the postal acknowledgements from the defendants 1, 2, 6 to 9, 11, 13 to 15, 19 to 23. Ex.A4 is the Registration extract of registered sale deed dt.31-3-1995 executed by Nagandla Sambasivarao in favour of Dhulipudi Sivarama Prasad. Ex.A5 is the registration extract of registered sale deed dt.31-3-1995 executed by Nagandla

Sambasivarao in favour of Dhulipudi Saibabu. Ex.A6 is the registration extract of registered sale deed dt.11-7-1959 executed by Gopaluni Ramalingaiah in favour of Dhulipudi Sreeramulu and others. Ex.A7 is the Registration extract of registered sale deed dt.27-7-1962 executed by Sristi Ramaiah in favour of Dhulipudi

Sreeramulu. Ex.A8 is the registration extract of registered settlement deed dt.8-11-2002 executed by Dhulipudi

Lakshmipathirao in favour of his wife Dhulipudi Kameswaramma.

Ex.A9 is the registration extract of registered setlement deed dt.29- 8-1984 executed by Dhulipudi Radhakrishna Murthy in favour of

Srinivasarao. Ex.A10 is the registration extract of registered sale deed dt.19-1-2005 executed by Dhulipudi Srinivasarao in favour of

Shaik Shamshuddin. Ex.A11 is the registration extract of registered of sale deed dt.6-12-2006 executed by Dhulipudi Radhakrishna

Murthy in favour of Karupilli Gangaiah. Ex.A12 is the registration extract of registered sale deed dt.12-2-2007 executed by Kunche

Rajeswararao. Ex.A13 is the registration extract of registered sale deed executed by Kunche Rajeswararao in favour of Koka

Krishnamurhty. Ex.A14 is the registration extract of registered sale 21 O.S.386/2007 deed dt.12-2-2007 executed by Kuche Rajeswararao in favour of

Pasupuleti Lakshmaiah. Ex.A15 is the registration extract of Form-

B dt.31-3-2009. Ex.A16 is the served copy of notice issued by

Revenue Divisional Officer, Narasaraopet to the plaintif. Ex.A17 is the served copy of notice dt.5-12-2004 under Form-I issued by

M.R.O., Vinukonda to the plaintif. Ex.A18 is the registration extract of registered sale deed dt.27-11-2006 executed by Kunche

Subrahmanyeswararao in favour of Siddi Venkateswaramma.

Ex.A19 is the registration extract of registered sale deed dt.27-11-2006 executed by Kunche Subrahmanyeswararao in favour of Pasupuleti Lakshmaiah. Ex.A20 is the registration extract of registered sale deed dt.27-11-2006 executed by Kuche Siva

Leela kumari in favour of Adapala Bhudevi. Ex.A21 is the registration extract of registered sale deed dt.27-11-2006 executed by Kunche Sivaleela Kumari in favour of Kola China Venkateswarlu.

Ex.A22 is the registration extract of registered sale deed dt.27-11- 2006 executed by Kunche Sivaleela Kumari in favour of Baddepudi

Siva. Ex.A23 is the registration extract of registered sale deed dt.27-11-2006 executed by Kuche Sivaleela Kumari in favour of

Koka Krishna Murthy. Ex.A24 is the certified copy registered sale deed dt. 11-7-1959.

18.On behalf of defendants D.Ws.1 to 6 examined and

Exs.B1 to B33 are marked. D.W.1 is Dhulipudi Ravindra Babu (7th defendant). D.W.2 is Dhulipudi Lakshmipathirao(8th defendant).

D.W.3 is Gurrala Mallikharjunarao. D.W.4 is Shaik Shamshuddin.

D.W.5 is Shaik Shareef. D.W.6 is Dhulipudi Srinivasarao (29th 22 O.S.386/2007 defendant). Ex.B1 is unregistered Will dt.4-2-1969 executed by

Dhulipudi Sreeramulu. Ex.B2 is the Rytwari patta in the year 1989 issued by Special Deputy Tahsildar, Markapur in favour of the 8th defendant. Ex.B3 is the registration extract of registered sale deed dt.15-3-1959 vide Doc.No.1069/1959 executed by Jonnalagadda

Narasaiah and others in favour of Dhulipudi Sreeramulu. Ex.B4 is the proceedings of the Sub-divisional Magistrate and Revenue

Divisional Officer . Ex.B5 is the registration extract of registered sale deed dt.30-4-1987 vide Doc.No.705/1987 executed by 8th defendant in favour of Dhulipudi Malleswari. Ex.B6 is the registration extract of the registered sale deed dt.17-5-1985 vide

Doc.No.993/1985 executed by the 8th defendant in favour of

Nagandla Sambasivarao. Ex.B7 is the certified copy of settlement deed dt.29-8-1984 executed by Dhulipudi Radhakrishna Murthy in favour of Dhulipudi Srinivasarao. Ex.B8 is the certified copy of sale deed dt.19-1-2005 executed by Dhulipudi Srinivasarao in favour of the 20th defendant. Ex.B9 is the certificate issued by the Mandal surveyor of Vinukonda. Ex.B10 is the adangal for the fasli 1422 in

S.No.62 of Chavatapalem village, Vinukonda mandal. Ex.B11 is the adangal for the fasli 1422 in S.No.65/1 of of Chavatapalem village,

Vinukonda mandal. Ex.B12 is the bunch of tax receipts four in number. Ex.B13 are the bunch of tax receipts four in number.

Ex.B14 is the pattadar passbook in the name of the 20th defendant.

EX.B15 is the title deed in the name of 20th defendant. Ex.B16 is the certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Raghupathirao and Krishna Prasad through their GPA holder Lagadapati Venkatarao in favour of Medisetty 23 O.S.386/2007

Srinivasarao. Ex.B17 is the certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murthy and his son Srinivasarao through their GPA holder Lagadapati

Venkatarao. Ex.B18 is the certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of Rolla

Anuradha. Ex.B19 is the certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of

Jonnalagadda Lakshmaiah. Ex.B20 is the certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi

Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of Kothamasu Krishna Murthy. Ex.B21 is the certified copy of the registered sale deed dt.25-4-2001 executed by

Dhulipudi Radhakrishna Murhty and his son Krishna Prasad through their GPA holder in favour of Desu Sivasankar. Ex.B22 is the certified copy of the registered sale deed dt.16-4-2001 executed by

Dhulipudi Raghupathirao and Dhulipudi Krishna Prasadarao in favour of Lagadapati Venkatarao. Ex.B23 is the registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Thota Ramarao. Ex.B24 is the registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Thota Ramarao. Ex.B25 is the registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Dalavayi Sandeep.

Ex.B26 is the registration extract of the registered sale deed dt.6-8- 2012 executed by the 20th defendant in favour of Dalavayi Vijaya 24 O.S.386/2007

Gowri. Ex.B27 is the certified copy of E.P.3/1985 in O.S.137/1981 on the file of Munsif Magistrate, Vinukonda. Ex.B28 is the certified copy of the cheque petition filed by the 8th defendant in E.P.3/1985 in O.S.137/1981 on the file of Munsif Magistrate, Vinukonda.

Ex.B29 is the certified copy of full satisfaction memo filed by the 8th defendant in E.P.3/1985 in O.S.137/1981 on the file of Munsif

Magistrate, Vinukonda. Ex.B30 is the served copy of the notice

dt.22-10-1993 issued by the 8th defendant to 5th defendant through his counsel. Ex.B31 is the office copy of reply got issued by the 5th defendant to the advocate of the 8th defendant. Ex.B32 is the certified copy of registered sale deed dt.24-2-1983 executed by the 1st defendant and her sons in favour of Pasupuleti Krishna Murthy.

Ex.B33 is the certified copy of the registered sale deed dt.15-4- 1983 executed by the 3rd defendant and his sons in favour of

Pasupuleti Krishna Murthy.

19.Counsel for the plaintif and counsel for the 8th defendant filed their written arguments. Counsel for the defendants 5, 20, 29, 44 to 47 submitted their oral arguments.

Counsel for the 8th defendant also submitted his oral arguments.

Counsel for the defendants 6, 7, 12, 13 reported that their side arguments may be treated as heard.

20.The written arguments filed by the counsel for the plaintif reiterated the pleadings of the parties besides the evidence both oral and documentary led by the parties. His submission shows that the evidence of D.Ws.2 and 3 particularly in their cross examination completely fumbled to prove the execution 25 O.S.386/2007 of Ex.B1/Will by the testator late Dhulipudi Sreeramulu. His argument at one of the points submitted that the version of the defendants that there was an oral partition of the schedule properties is completely failed to state about any date, month or year when the said oral partition had taken place besides the place of partition, particulars of the properties that were fell to the respective shares. The written arguments of the plaintif also pointed out the discrepancy in the exhibits got marked on behalf of the defendants to prove the bonafides in their contention. Since the defendants approached the court with unclean hands and failed to furnish the particulars of their plea of oral partition entitled the plaintif for his relief of partition as prayed for.

21.Per contra, counsel for the defendants 5 and 20 in his submission stated that the plaintif has no locus standi to file the present suit for partition when there was a prior partition. The cross examination of P.W.1 is itself enough to prove the contention of the defendants that the parties are in their respective shares of

Item No.1 of A schedule property. The father of plaintif purchased

Items 1 and 2 of A schedule property by virtue of the registered sale deeds covered under Exs.A6 and A24. On perusal of the said documents show that along with the father of the plaintif and his sons one Puligujjula Venkaiah was also one of the claimants purchased the said property covered under two sale deeds, however he was not shown as party in the present suit proceedings invariably made the claim of the plaintif non-est on the ground of non-joinder of necessary parties. His argument further shows the 26 O.S.386/2007 number of sale deeds executed by the legal heirs of late Dhulipudi

Sreeramulu in favour of third parties is nothing but a prior partition among themselves and transferred their properties fell to their share in favour of third parties. His argument concludes that it is a collusive suit got filed by the plaintif in collusion with his other brothers in order to cause loss to the third party purchasers.

22.Counsel for the 29th defendant submitted his argument that there was a prior oral partition in the year 1980 which is very much vivid by virtue of the number of sale deeds that were got exhibited by the defendants through their evidence. The person

Puligujjula Venkaiah who is one of the claimants under Ex.A6 was not shown as a party in the present suit for partition is itself enough to dismiss the suit on the ground of non-joinder of necessary party. His argument further pointed out that the plaintif not added the legal heirs of deceased 11th defendant who are also proper and necessary parties being the co-sharers of the present plaint schedule properties. His submission shows 1st defendant is second wife of late Dhulupudi Satyanarayana, but the first wife of

Satyanarayana was similarly not shown as one of the defendants being the proper and necessary party. Similarly, the 3rd defendant again showed as 41st defendant which is also a mistake crept in the pleadings of the plaintif. The documents that were got exhibited by the 29th defendant clearly and clinchingly shows that the legal heirs of late Dhulipudi Satyanarayana executed the registered sale deeds in favour of third parties for their property which was fell to the share of Satyanarayana in the earlier oral partition. Since the 27 O.S.386/2007 proper and necessary parties were not shown in the suit claim and all the properties of late Dhulipudi Sreeramulu were similarly not shown in the schedule, made the plaintif not entitled to get the claim on the ground of non-joinder of necessary parties and for partial partition respectively.

23.Counsel for the defendants 44 to 47 in his submission stated that the defendants 6 and 7 are sailing with the plaintif.

Defendants 44 to 47 are the legal heirs of deceased 11th defendant who is none other than the brother of the plaintif. Though the 8th defendant pleaded that there was a Will dt.4-2-1969 executed by late Dhulipudi Sreeramulu in his favour for the property shown in B schedule, he failed to prove the execution of Will since no attestors to the said document were examined to prove the execution of the

Will under the provisions of the Indian Evidence Act. His argument concluded that there is no partition at all and the entire property is with Lakshmipathirao(D8).

24.Counsel for the 8th defendant in his oral submission reiterated the pleadings. According to him, the burden is on the plaintif when he pleaded that there is joint and constructive possession. As per the pleadings, late Dhulipudi Sreeramulu died in the year 1974 and the present suit was got filed in the year 2007 i.e., after lapse of 33 years. So, the burden is only on the plaintif to prove the joint possession. But, in this case, there is no document on behalf of the plaintif to show the joint and constructive possession of the plaintif as pleaded by him. Except the plaintif as P.W.1, there is no other evidence on behalf of the 28 O.S.386/2007 plaintif to prove the said fact of joint possession. His argument went on pointing out the number of registered sale deeds executed by the sons of late Dhulipudi Sreeramulu in favour of third parties who are in possession and enjoyment of the said property in order to thrown out the claim of the plaintif for his contention that he is in joint possession and enjoyment of the plaint schedule properties as on the date of filing of the present suit. His arguments also raised the ground of partial partition. According to him, the property covered under Ex.B3 was similarly purchased by late

Dhulipudi Sreeramulu as his self-acquired property, then without impleading the said item as one of the items of the present plaint schedule how made the plaintif to file the present suit for partition and on that score the suit has to be dismissed.

25.Counsel for the 8th defendant similarly reiterated the arguments submitted by the other defendants with regard to non- joinder of necessary parties i.e., other claimants of the sale deeds covered under Exs.A6 and A24 so also the other legal heirs of late

Dhulipudi Gopalarao other than the defendants 6 and 7 who are not shown as proper and necessary parties. As could be seen from his arguments shows that there are Ac.22.00 cents in the name of third parties for which the registered sale deeds were got exhibited on behalf of the defendants and they were not shown as a proper and necessary parties in the present suit for the claim of partition with a plea of joint possession. His submission further shows that when the 8th defendant pleaded the execution of Will under Ex.B1 by late Dhulipudi Sreeramulu in favour of 8th defendant there was 29 O.S.386/2007 no denial from the plaintif even by way of filing any rejoinder on his behalf. The cross examination of D.W.2 by the counsel for plaintif shows as “reported nil”, further concludes that the contention of 8th defendant coupled with Ex.B1 said to have been proved in order to show the right and title of the 8th defendant over

Items 2 to 4 of B schedule property.

26.The written arguments filed by the counsel for the 8th defendant similarly reiterated the pleadings and evidence led by both sides with a conclusion that the plaintif is not in joint possession of the plaint schedule properties as pleaded and the court fee paid under the provisions of Section 34(2) of A.P.C.F and

S.V.Act is not applicable to the case on hand and he has to pay the same under the provisions of 34(1) of A.P.C.F and S.V.Act and all the legal requirements which are not complied by the plaintif not entitle to get any relief under the present suit.

Issue No.2:

27.The case of the plaintif basing on the evidence of P.W.1 coupled with Exs.A1 to A24 is that one Dhulipudi Sreeramulu had six sons and three daughters, namely, Raghupathirao(plaintif), late

Satyanarayana, late Radhakrishna Murthy (D5), late Venkata

Gopalarao, Lakshmipathirao(D8), late Venkateswararao(D11), late

Kunche Ranganayakamma, Kalakanda Vijayalakshmi(D9) and

Kolagani Samrajya Lakshmi(D10). Out of them, late

Satyanarayana, late Venkata Gopalarao and late Kunche

Ranganayakamma were died as on the date of filing of the suit.

The said Sreeramulu died in the year 1974 as intestate. The said 30 O.S.386/2007

Sreeramulu during his life time purchased items 1 and 2 of A schedule properties jointly along with Radhakrishna Murthy,

Lakshmipathirao, Satyanarayana and Kunche Sitaramaiah from

Gopaluni Ramalingaiah under the registered sale deeds dt.11-7-1959 and 21-7-1959 respectively. He also purchased plaint

B schedule property from Sristi Ramaiah under the registered sale deed dt.27-7-1962. Since all the legal heirs of late Dhulipudi

Sreeramulu are in joint possession and enjoyment of the plaint schedule properties and the plaintif after demanding the defendants 1 to 15 orally and personally on number of occasions got filed the present suit after issuance of notice dt.1-2-2007.

28.Per contra, the case of the 5th defendant basing on his written statement is that all the legal heirs of late Sreeramulu efected a partition in the presence of elders and common friends subsequent to the death of Sreeramulu. In pursuance of the said oral partition, their respective shares were sold away by them long back. There is no property available for partition and the suit is aimed to harass the subsequent purchasers. The case of the defendants 6 and 7 basing on the evidence of D.W.1 is that they are equally entitled for their respective shares in plaint A and B schedule properties in the property of late Sreeramulu.

29.The case of the defendants 6 and 7 basing on their written statement is that they are the legal heirs of late Dhulipudi

Gopalarao and according to them, the plaint schedule properties are not yet partitioned and they are entitled to the share of late

Gopalarao in the properties of late Dhulipudi Sreeramulu.

31 O.S.386/2007

30.The case of the 8th defendant basing on the evidence of

D.Ws.1 and 2 coupled with Exs.B1 to B6 is that their father late

Sreeramulu along with his son Satyanarayana, Tanneeru Venkata

Subbaiah and Puligujjula Venkaiah also got purchased Ac.2.00 cents of land situated at Vinukonda grama D.No.401/2 situated at

Vinukonda town from Jonnalagadda Narsaiah and others under a registered sale deed dt.15-3-1959(Ex.B3) and the said property was not included in the present plaint schedule and on that score the suit has to be dismissed for partial partition. His case in further is that one Agnigundala Venkata Rangarao of Agnigundala village filed O.S.13/1963 on the file of Principal Subordinate Judge Court at

Narasaraopet, against his father late Sreeramulu for recovery of amount and obtained a decree. The said Venkata Rangarao also filed E.P.135/75 against the 8thdefendant, Satyanarayana,

Radhakrishna Murhty, Venkata Gopalarao, Lakshmipathirao and

Raghupathirao i.e., all the sons of late Sreeramulu claiming against the property of A schedule and pending execution, 8th defendant paid Rs.5,300/- to the Decree holder on 16-2-1977 towards full and final satisfaction of the decree in addition to the payment of poundage and other necessary expenses. In fact, he paid the said amount by selling away his Ac.1.00 cents of wet land in Chilumuru village on 6-9-1976 under possessory agreement of sale and consequent registration of the sale deed on 30-4-1987. He filed

E.A.109/1977 which was allowed on 27-11-1978 by setting aside the sale and when his brothers failed to pay their share of amount under the said decree, then he got filed O.S.137/1981 on the file of

District Munsif, Narasaraopet, against his four brothers for the 32 O.S.386/2007 contribution of their share of amount which was decreed in his favour. Later, the 5th defendant by receiving Rs.2,000/- from the 8th defendant executed an unregistered sale contract on 26-4-1985 for an extent of Ac.3.50 cents in A schedule property executed a document in favour of the 8th defendant. Later, the 8th defendant sold Ac.15.00 cents of A schedule property to one Nagandla

Sambasivarao who has been in possession and enjoyment of the said property. He also gifted Ac.7.00 cents of A schedule property including the property purchased from the 5th defendant to his wife

Kameswaramma under a registered gift deed dt.8-11-2002 and she has been in possession and enjoyment of the said property. His case in further shows that his father late Sreeramulu executed a

Will on 24-2-1969 for the properties covered under items 2 to 4 of

B schedule in his favour and after his death on 2-4-1974 the Will was acted upon and he became the absolute owner of the properties covered under the said Will and has been in possession and enjoyment of the said property.

31.The case of defendants 12 and 13 basing on their written statement is that Puligujjula Venkaiah, Kunche

Subrahmanyeswararao,DhulipudiSreeramulu,Dhulipudi

Lakshmipathirao and Dhulipudi Gopalarao divided their properties into five equal shares and enjoyed their respective shares without any interference. The revenue authorities also issued rytwari passbooks to the co-sharers in respect of their properties independently. On 17-5-1985, Dhulipudi Lakshmipathirao sold his share of property to one Nagandla Sambasivarao under a 33 O.S.386/2007 registered sale deed and the 1st defendant sold her share of property to Pasupuleti Krishna Murthy on 24-2-1983. The defendants 12 and 13 also sold away their portion of property under various sale deeds dt.27-11-2006 to the third party purchasers who are in possession and enjoyment of their respective properties.

32.The case of 20th defendant basing on the evidence of

D.W.5 coupled with Exs.B7 to B26 is that 20th defendant purchased his property of Ac.15.00 cents under the registered sale deed dt.19-1-2005 from Dhulipudi Srinivasarao(D29) i.e., son of 5th defendant who has been in possession and enjoyment of the said property mutated his name in revenue records, later by executing diferent sale deeds on 6-8-2012 sold away the property to third party purchasers who have been in possession and enjoyment of the said property.

33.The case of the 27th defendant basing on the written statement is that late Dhulipudi Sreeramulu during his life time, sold away his properties to his second son i.e., 5th defendant under an agreement of sale dt.15-11-1971 in respect of B schedule properties and delivered possession of the same to him and since then the 5th defendant had been in possession and enjoyment of the B schedule property. Later, the 5th defendant for his family necessities sold away item No.1 of B schedule properties to 27th defendant under a registered sale deed dt.21-5-1980 for a valid consideration and since then he has been in possession and enjoyment of the said property mutated his name in revenue 34 O.S.386/2007 records. Later, he sold away the said extent to third parties under various sale deeds.

34.The case of the 29th defendant basing on the evidence of D.W.6 coupled with Exs.B27 to B33 is that his father late

Radhakrishna Murthy(D5) executed a settlement deed in his favour on 29-8-1984 and since then he had been in possession and enjoyment of the property, sold away the same to the 20th defendant on 19-1-2005 under a registered sale deed and also delivered possession to him. The 5th defendant also sold away some of his property to the 21st defendant under a registered sale deed dt.6-12-2006. The plaintif, his father 5th defendant and

Venkata Gopalarao sold an extent of Ac.30.00 cents under an agreement of sale dt.6-5-1985 to Gundimeda Janardhanarao and others, but the purchasers did not perform their part of contract and the father of this defendant paid his share of earnest amount, but the plaintif did not return his share resulted the vendees occupied the share of the plaintif’s property. Apart from that, on 5-5-1985, all the above referred sold an extent of Ac.15.00 cents under another agreement of sale to Devarakonda Pitchaiah and

Konatala Narasaiah and 12 others and the purchasers similarly failed to perform their part of contract and the earnest amount was returned by the father of this defendant and the plaintif when failed to return the said amount resulted the purchasers occupied the share of plaintif’s property.

35.Since the plaintif got filed the present suit contending that the plaint A and B schedule properties are self-acquired 35 O.S.386/2007 properties of his father late Sreeramulu who died intestate in the year 1974 and since then he has been in joint possession of the plaint schedule property, the initial burden would be on him to prove his contention. However the defence of the contesting defendants shows that there is an earlier partition immediately after the death of late Dhulipudi Sreeramulu and the respective sharers who disposed of their shares to third parties will place the onus on the defendants in order to prove their contention that there was an earlier oral partition among the legal heirs of late

Dhulipudi Sreeramulu. In order to prove their contention, the 8th defendant besides examining himself as D.W.2 also adduced the evidence of one of the attestors of Ex.B1 Will as D.W.3. Apart from him, the defendants 20 and 29 were got examined as D.Ws.5 and 6 in order to prove their contention that there was an earlier oral partition among the legal heirs of late Dhulipudi Sreeramulu.

36.Before adverting to the evidence of the defendants’ side witnesses, let us see the admitted facts in the present suit. They are that late Dhulipudi Sreeramulu had six sons and three daughters. They are, Raghupathirao(plaintif), late Satyanarayana (husband and father of defendants 1 to 4), late Radhakrishna

Murthy((D5)(D28 to D31 are legal heirs of D5), late Venkata

Gopalarao(husband and father of defendants 6 and 7),

Lakshmipathirao(D8),Venkateswararao (D11)(husband and father of defendants 44 to 47),late Kunche Ranganayakamma (defendants 12 to 15 are the legal heirs),Kalakanda Vijayalakshmi (D9),Kolagani Samrajya Lakshmi(D10). It is another admitted fact 36 O.S.386/2007 that out of the nine children, Satyanarayana, Venkata Gopalarao and Kunche Ranganayakamma were died before the institution of the suit. Later, the defendants 5 and 11 were died during the pendency of proceedings. It is another admitted fact that the joint family properties of late Dhulipudi Sreeramulu were got partitioned during his life time in between his sons under a partition list dt.10-5-1957. After the earlier partition, Dhulipudi Sreeramulu purchased Item No.1 of A schedule property admeasuring

Ac.100.00 cents under the registered sale deed dt.11-7-1959 executed by Gopaluni Ramalingaiah in favour of Sreeramulu and his sons Radhakrishna Murthy(D5), Raghupathirao(plaintif), late

Satyanarayana and one Kunche Sitaramaiah. Late Sreeramulu also purchased Item No.2 of A schedule property admeasuring Ac.50.00 cents under a registered sale deed dt.11-7-1959 executed by

Gopaluni Ramalingaiah in favour of Puligujjula Venkaiah, Kunche

Sitaramaiah, Dhulipudi Sreeramulu and his sons Lakshmipathirao and Gopalarao. It is another admitted fact that plaint B schedule property shown in Items 1 to 4 admeasuring Ac.45.00 cents was also purchased by Dhulipudi Sreeramulu under the registered sale deed dt.27-7-1962 from Sristi Ramaiah of Annasamudram village.

It is another admitted fact that late Dhulipudi Sreeramulu also purchased another extent of Ac.22.55 cents in D.No.401/2 of

Vinukonda under a registered sale deed dt.15-3-1959(Ex.B3) from

Jonnalagadda Narsaiah and others. Late Sreeramulu died on 2-4-1974.

37 O.S.386/2007

37.It is another admitted fact that one Agnigundala

Venkata Rangarao of Agnigundala village filed the suit in

O.S.13/1963 on the file of Principal Subordinate Judge Court at

Narasaraopet against Dhulipudi Sreeramulu for recovery of amount and obtained a decree. In pursuance of the decree, he filed

E.P.135/1975 against the sons of Sreeramulu i.e., Satynarayana,

Radhakrishna Murthy (D5), Venkata Gopalarao, Lakshmipathirao (D8) and Raghupathirao(plaintif) against the property of A schedule. During the pendency of the said E.P., proceedings, the 8th defendant filed full satisfaction memo towards the realization of the decree. Later, he got filed O.S.137/1981 on the file of District

Munsif Court at Narasaraopet against the remaining legal heirs of

Dhulipudi Sreeramulu for contribution of their share of amounts covered under the E.P. It is another admitted fact that on 17-5-1985 Dhulipudi Lakshmipathirao (D8) sold part of A schedule property to one Nagandla Sambasivarao and executed the registered sale deed vide Doc.No.993/1985(Ex.B6). On 24-2-1983, the 1st defendant sold part of A schedule property and property in

S.No.401/2A of Vinukonda to Pasupuleti Krishna Murthy under the registered sale deed vide Doc.No.519/1983(Ex.B32). On 15-4-1983, the 2nd defendant and his sons sold part of A schedule property in S.No.401-2A of Vinukonda to Pasupuleti Krishna Murthy (Ex.B33) vide Doc.No.667/83. The defendants 12 and 14 sold away portion of A schedule property under various sale deeds dt.27-11- 2006 and 12-2-2007 vide Doc.Nos.7031/2006 to 7036/2006 and 1144/2007 to 1146/2007 (Exs.A18 to A23) (Exs.A12 to A14) to the respective purchasers. It is another admitted fact that the 5th 38 O.S.386/2007 defendant for his family necessities sold away Item No.1 of B schedule property to the 27th defendant under the registered sale deed dt.21-5-1980 who in turn sold away the said property to third parties under various sale deeds dt.20-5-1985. It is also an admitted fact that on 29-8-1984, the 5th defendant executed the registered settlement deed in favour of his son 29th defendant for the property admeasuring Ac.15.00 cents covered by S.Nos.55/1 and 55/10 vide Doc.No.3501/1984(Ex.A9=Ex.B7). The 29th defendant in turn executed the registered sale deed in favour of 20th defendant on 19-1-2005 for the total extent covered under the registered settlement deed(Ex.A10=Ex.B8). On 6-8-2012, the 20th defendant in his turn executed number of sale deeds in favour of third parties for the property purchased by him from D29 (Exs.B23 to B26). It is another admitted fact that plaintif, his son Krishna

Prasad through their G.P.A., Lagadapati Venkatarao executed sale deeds in favour of Madisetti Srinivasarao for the property situated in S.No.401/2A1 of Vinukonda vide Doc.Nos.1525/2001 and 1526/2001 dt.25-4-2001 and 1379/2001 dt.16-4-2001 respectively.

The 5th defendant and his son the 29th defendant similarly executed sale deeds on 25-4-2001 through their G.P.A., Lagadapati

Venkatarao in favour of third parties for the properties situated in

S.No.401/2A1 of Vinukonda vide Doc.Nos.1527/2001 to 1530/2001 dt.25-4-2001 (Exs.B17 to Ex.B20).

38.Now, let us see the evidence of the contesting defendants who pleaded that there was an earlier oral partition among the legal heris of Dhulipudi Sreeramulu and the co-sharers 39 O.S.386/2007 for the property purchased by him covered under Exs.A6, A7 and

A24. Though the first witness on behalf of the defendants as D.W.1 who is none other than the 7th defendant being one of the legal heirs of late Gopalarao, his contention is that there is no such earlier partition as pleaded by the other contesting defendants. As per the pleadings of the defendants 6 and 7 they are sailing with the plaintif and sought for partition of their share in the present plaint A and B schedule properties. So, the evidence of D.W.1 would not helpful to decide the point in respect of the earlier oral partition among the co-sharers and legal heirs of late Dhulipudi

Sreeramulu for his self-acquired properties as shown in plaint A and B schedules. The second witness on behalf of the contesting defendants is none other than the 8th defendant. He was examined as D.W.2. He filed his chief affidavit reiterating the contents of the written statement. As could be seen from the defence of this defendant shows that late Dhulipudi Sreeramulu executed

Ex.B1/Will for the properties shown in Items 2 to 4 of B schedule property on 4-2-1969. After the death of Sreeramulu on 2-4-1974, the said Will was acted upon and the 8th defendant became the absolute owner and has been in possession and enjoyment of the said property. As could be seen from his pleadings though he has not specifically pleaded the factum of earlier oral partition, his version shows he sold away Ac.15.00 cents out of A schedule to one Nagandla Sambasivarao of Timmapuram under the registered sale deed long back and gifted Ac.7.00 cents in A schedule to his wife Dhulipudi Kameswaramma under the registered gift deed dt.8- 11-2002 and the respective claimants are in possession and 40 O.S.386/2007 enjoyment of the said property impliedly shows the earlier partition and the plaintif is well aware about the said facts and intentionally got filed the present suit contending that he is in joint possession and enjoyment of the said property. Through this witness, six documents were got marked as Exs.B1 to B6. Out of them, Ex.B3 is the material document to decide the present point in issue and it is the registered sale deed dt.15-3-1959 executed by Jonnalagadda

Narasaiah and others in favour of Dhulipudi Sreeramulu and others. As could be seen from the schedule covered under the said document shows an extent of Ac.22.55 cents covered by

D.No.401/2 of Vinukonda was purchased by Dhulipudi Sreeramulu in the year 1959 during his life time along with the other properties covered under Exs.A6, A7 and A24. Admittedly there is no whisper in the pleadings of the plaintif with regard to the property covered under Ex.B3 which is also one of the self-acquired properties of

Dhulipudi Sreeramulu available for partition. This is the area where all the contesting defendants very much concentrated and contended that the suit is bad for partial partition and the plaintif knowing fully well that there are other properties got purchased by his father Sreeramulu in the year 1959 at Vinukonda not furnished those items in the present plaint schedule for the relief of partition.

Counsel for the defendants 5, 8, 20 and 29 very much concentrated in their arguments by referring the property covered under Ex.B3 coupled with the admission of P.W.1 in his cross examination about the said property got purchased by Sreeramulu during his life time which was not shown in the present plaint schedule as one of the items liable for partition. In this context, 41 O.S.386/2007 though it is conceded by the plaintif as P.W.1 in his cross examination about the property covered under Ex.B3 purchased by his father on 15-3-1959 at Vinukonda, the subsequent cross examination with regard to the said property which was sold away by the plaintif, his son and the other legal heirs of Dhulipudi

Sreeramulu in favour of third parties by executing a registered

G.P.A., in favour of one Lagadapati Venkatrao. Exs.B16 to B22 are the said documents marked through D.W.5 who is a third party to the proceedings, examined on behalf of the 20th defendant who is one of the third party purchasers of Item No.1 of plaint A schedule property. Admittedly as could be seen from the documents under

Exs.B16 to B22 the executants who are the legal heirs of Dhulipudi

Sreeramulu after the death of their father sold away their respective shares as per the family arrangement. This is another area where the counsel for the defendants 5 and 20 stressed more in their arguments contending that the recitals covered under

Exs.B16 to B22 are quite enough to conclude the factum of earlier partition among the legal heirs of Dhulipudi Sreeramulu.

Absolutely such an argument is not acceptable in view of the absence of specific pleadings with regard to the said item of property in S.No.401/2A of Vinukonda by way of family arrangement in their pleadings. It is settled proposition of law that any amount of evidence beyond the pleadings is not permissible.

Though the 8th defendant did not plead any of the particulars with regard to the earlier oral partition and the respective shares of the parties in the said partition, the other defendants who are defendants 5, 20 and 29 in their pleadings contended that 42 O.S.386/2007 immediately after the death of Dhulipudi Sreeramulu the schedule properties were partitioned by the legal heirs of Sreeramulu in the presence of elders and their friends, so also the earlier partition was about more than 50 years ago even during the life time of late

Satyanarayana. Admittedly the 5th defendant who pleaded the earlier partition immediately after the death of Dhulipudi

Sreeramulu and the respective shares to the legal heirs of

Sreeramulu similarly not pleaded either the date, month or year when the alleged partition had been taken place and the particulars of the properties fell to the shares of each respective sharer as pleaded by him. Since the 5th defendant died during the pendency of the suit, his legal heirs i.e., 29th defendant examined as one of the witnesses on his behalf as D.W.6. The evidence of

D.W.6 in his chief affidavit similarly absent with regard to the particulars of the earlier oral partition immediately after the death of Sreeramulu as pleaded by his father in his written statement.

So, in the absence of any material particulars even to show any probabilities on behalf of the defendants to consider their contention that there was an earlier oral partition of the present plaint schedule properties. Absolutely the documents under

Exs.B16 to B22 would not helpful to the case of the contesting defendants to prove the factum of earlier oral partition among all the legal heirs of late Dhulipudi Sreeramulu. Ex.B4 are the proceedings of the Sub-divisional Magistrate, Tenali when issued to register the date of death of Sreeramulu on 2-12-1974 basing on the application of the 8th defendant and the said document is not in dispute since the date of death of Sreeramulu is an admitted fact.

43 O.S.386/2007

Ex.B5 is the certified extract of registered sale deed dt.30-4-1987 executed by the 8th defendant in favour of Dhulipudi Malleswari, w/o Venkateswararao. This is another document that was exhibited on behalf of the 8th defendant in order to show his contention with regard to sale of his Ac.1.00 cents of wet land at

Chilumuru in order to discharge the decretal amount in

O.S.13/1963 got filed by Angigundala Venkata Rangarao.

Admittedly this document shows the execution of sale deed by the 8th defendant in favour of Malleswari for the property in D.No.19.1 of Chilumuru village. So, it does not reflect the material conteniton of the 8th defendant to prove the fact of earlier oral partition.

39.Ex.B6 is another certified extract of registered sale deed dt.17-5-1985 executed by the 8th defendant in favour of Nagandla

Sambasivarao, it is another document where part of the plaint A schedule property was disposed of by the 8th defendant in favour of third party in the year 1985 and the recitals of the said document shows that the executant referred his title in the said document as his self-acquired property. So, that itself shows the contention of the defendants about the factum of earlier oral partition among the legal heirs of Dhulipudi Sreeramulu was not similarly reflected in the said document. So, this document similarly does not helpful to the case of the contesting defendants to prove the factum of earlier oral partition. This witness was thoroughly cross examined by the counsel for the plaintif, the defendants 6, 7 and other contesting defendants 5, 20 and 27. The major portion of the cross examination is with reference to the Will under Ex.B1 which has to 44 O.S.386/2007 be considered at a later point of time in the additional issue which was settled in order to decide the validity of Ex.B1/Will. The cross examination of D.W.2 at one point of time stated that there are no arrangements made for partition of his father’s properties during his life time except a Will. Similarly, he stated that the self- acquired properties of his father are equally entitled by his sons and after the death of his father, properties are not partitioned among them. He similarly admitted that the partition of A schedule not took place among them, but he purchased Ac.3.50 cents from the 5th defendant. So, what else is required to conclude the contention of defendants through D.W.2 that their plea of earlier oral partition amongst the legal heirs of late Dhulipudi

Sreeramulu has completely fumbled in order to consider the contention of the plaintif that his father died after the earlier partition of the ancestral properties in the year 1957 and the plaint schedule properties are avaliable for partition.

40.Now, let us see the evidence of D.W.5 who is none other than the viyyanka of 20th defendant, examined as a third party, filed his chief affidavit reiterating the contents of the written statement of 20th defendant. According to this witness, the self- acquired properties of Dhulipudi Sreeramulu were divided among his sons more than 50 years ago. According to him, the 5th defendant executed a registered settlement deed on 29-8-1984 in favour of his son 29th defendant for an extent of Ac.15.00 cents in

S.Nos.55/1,55/10 who in turn executed a registered sale deed on 19-1-2005 in favour of 20th defendant who had been in possession 45 O.S.386/2007 and enjoyment of the property mutated his name in revenue records and subsequently sold the said property on 6-8-2012 in favour of third parties who are now in possession and enjoyment of the said property. Through this witness, Exs.B7 to B26 were got marked. Out of them, EX.B7 is certified copy of the registered settlement deed executed by the 5th defendant in favour of his son 29th defendant. On perusal of the contents of the said documents reflects the title of the executant as his self-acquired property. This document similarly marked in A seried as Ex.A9. Ex.B8 is the sale deed executed by the 29th defendant in favour of 20th defendant.

This document similarly marked in A series as Ex.A10. Exs.B9 to

B15 are the revenue record to show the name of the 20th defendant mutated for the property purchased by him covered under Ex.B8.

Here the contention of 20th defendant through D.W.5 is that after thorough enquiry by the mandal surveyor of Vinukonda, he issued a certificate stating that the property covered under Ex.B8 is covered by S.No.62 and 65/1 of Chowtupalem of Vinukonda mandal and the said property had been in possession and enjoyment of 20th defendant and accordingly his name was reflected in the revenue record. Exs.B23 and 26 are the sale deeds dt.6-8-2012 executed by the 20th defendant in favour of third parties for the property purchased by him covered under Ex.B8. Admittedly, all those sale deeds are during the pendency of the suit and the purchasers would get right over the said property subject to the result of the suit but not otherwise. All those sale deeds are subject to the doctrine of lis pendens, and there is no dispute on it.

This witness was cross examined by the counsel for the plaintif 46 O.S.386/2007 wherein he stated that he has no idea about the property purchased by Sreeramulu under Ex.A7. Similarly, his evidence shows that he cannot say the oral partition between the sons of

Sreeramulu and according to him, the plaintif advised him to purchase the property belonged to his elder brother

Lakshmipathirao(D5). Though the witness referred the settlement deed under Ex.B7 in favour of 29th defendant his statement further shows that there was no reference about the oral partition among the legal heirs of Sreeramulu in the said settlement deed executed by the 5th defendant in favour of 29th defendant. So, this is the similar area where this court repeatedly noticed about the contents of the sale deeds executed by the legal heirs of Sreeramulu in favour of their family members and third parties for part of plaint A and B schedule properties though contended a family arrangement absolutely there are no particulars about the alleged family arrangement which is not the contention of the defendants in their pleadings. Their reference is about oral partition and the said factum is nowhere found in the documents that were got marked through D.Ws.2 and 5. Coming to the documents under Exs.B9 to

B15 are concern, they are entries in revenue records. It is settled proposition of law that mere entries in revenue record does not confer any title. When the right of the 5th defendant has not proved over the property covered under Ex.B7 for their plea of oral partition it would not entitle the 20th defendant to canvass himself as absolute owner basing on Exs.B9 to B15. Now, it is relevant to refer the last witness on behalf of the contesting defendants who is none other than 29th defendant when examined as D.W.6.

47 O.S.386/2007

41.The chief affidavit of D.W.6 is other than the contents of his written statement. Though in the first paragraph he contended the execution of gift deed by his father in his favour on 29-8-1984 for the property situated in S.Nos.55/10 and 55/11 and later he sold away the same to the 20th defendant under the registered sale deed dt.19-1-2005 who in turn sold the said property to various third party purchasers he restricted his earlier plea of oral partition only to A schedule which is an improved version. His chief affidavit further added the contents with reference to the issuance of legal notice by the 8th defendant on 22-10-1993 under Ex.B30 for which his father got issued a reply under Ex.B31 for the property covered under the agreement of sale dt.26-4-1985. According to his version, since the agreement of sale is invalid, the 8th defendant has no right over the property of Ac.3.50 cents as alleged. The chief affidavit of D.W.6 further shows the execution of sale deeds by the 2nd defendant along with his minor sons for the property situated in S.No.55/10 admeasuring Ac.4.00 cents in A schedule property and S.No.401/2 admeasuring Ac.11.50 cents at Vinukonda to Pasupuleti Krishnamurthy under Ex.B32 who delivered possession to the said vendee who has been in possession and enjoyment of the said property and 8th defendant and Puligujjula

Venkaiah were the attestors of the said document. He also contended that the 1st defendant and his sons and daughter sold an extent of Ac.11.00 cents out of Ac.17.00 cents covered by

S.No.55/10 i.e., item No.1 of A schedule property and Ac.3.50 cents covered by S.No.401/2A1 at Vinukonda to Pasupuleti

Krishnamurthy under Ex.B33 and non-mention of the said facts by 48 O.S.386/2007 the plaintif in the plaint. His evidence lastly shows the execution of possessory sale agreement dt.15-11-1971 by late Dhulipudi

Sreeramulu in favour of 5th defendant when sold B schedule properties to his son not entitled either the plaintif or the other sons of Sreeramulu to claim any right in B schedule properties.

The 5th defendant in pursuance of the said sale sold Item No.1 of B schedule property to the 27th defendant under the registered sale deed dt.21-5-1980 who has been in possession and enjoyment and subsequently died 6 or 7 years back. Since the plaintif failed to brought the legal heirs of 27th defendant as parties to the suit who are proper and necessary parties, the suit against the said item became infructious to decide any right over the said property. The contention of D.W.6 lastly ended with number of persons whose names were not shown in the plaint as proper and necessary parties being the legal heirs of other co-sharers of plaint schedule property so also the legal heirs of subsequent purchasers of the property covered under various sale deeds. Through this witness,

Exs.B27 to B33 were got marked.

42.Before adverting to the cross examination of D.W.6 here it is pertinent to refer the contention of D.W.6 in his chief affidavit which is contrary to his pleadings so also the pleadings of his father i.e., the 5th defendant. Both the 5th defendant and his son the 29th defendant initially when they got filed their respective written statements, they pleaded that there was an earlier oral partition long back which is more than 50 years ago, but contrary to the pleadings the chief affidavit of D.W.6 was got filed by 49 O.S.386/2007 introducing a new fact stating that A schedule properties were alone partitioned orally among the brothers who are in possession and enjoyment of their respective shares and B schedule property was exclusive property of the 5th defendant who purchased the same from his father Sreeramulu under the possessery agreement of sale dt.15-11-1971. Admittedly, the said document was not tendered for evidence.

43.Let us see the cross examination of D.W.6 whether shows any probabilities to believe their version to prove the fact of earlier oral partition among the sons of Dhulipudi Sreeramulu for the present disputed plaint A schedule properties. This witness in his cross examination stated that there is no document to show the partition for the Item No.2 of A schedule property, he cannot say the division of property among the sharers as per oral partition. He cannot say how much share the plaintif got in the partition as he was not present at the time of partition. The cross examination of

D.W.6 similarly shows the admission through the witness i.e., father of defendants mentioned in the gift deed that he got the property as he purchased the same and not mentioned that it was inherited through partition. So, all the admissions in the cross examination of D.W.6 similarly shows that the contention of the 29th defendant to prove the said facts as contended in his evidence that the earlier oral partition is only with reference to A schedule properties i.e., both 1 and 2 items of A schedule is not proved. In this context, here it is relevant to refer the evidence of the 8th defendant as D.W.2. In his cross examination when elicited by the 50 O.S.386/2007 counsel for the 29th defendant he admitted that his father executed an agreement of sale with possession infavour of 5th defendant on 15-11-1971 with regard to B schedule property and he does not know whether the 5th defendant sold Ac.15.00 cents in the said property. So, the admission of D.W.2 in his cross examination with regard to execution of agreement of sale coupled with possession for B schedule items in favour of 5th defendant on 15-11-1971 further shows the inconsistency in the contention of the 8th defendant when pleaded the execution of unregistered Will by his father for the items 2 to 4 of B schedule property. When the 8th defendant pleaded the execution of Ex.B1 Will in his favour by his father for Items 2 to 4 of plaint B schedule properties how his statement as above referred would show bonafides in his contention to believe his version. However the said fact of execution of agreement of sale with Dhulipudi Sreeramulu in favour of the 5th defendant for B schedule properties are not supported with any documentary proof. The settlement deed executed by the 5th defendant in favour of 29th defendant is similarly silent about the alleged agreement of sale by Sreeramulu in favour of 5th defendant in order to show any corroboration in the contention of the 29th defendant to believe his version. All the material admissions in the cross examination of D.W.6 particularly with reference to their plea of earlier oral partition completely made their claim fumbled to prove the said contention on their behalf in order to discharge their onus.

51 O.S.386/2007

44.So, the evidence of the contesting defendants coupled with their documents though shows the probabilities to believe their version that there was a family arrangement among the legal heirs of late Dhulipudi Sreeramulu, in the absence of any material particulars about the said alleged oral partition absolutely their evidence is not suffice to prove the factum of earlier oral partition either before or after the death of late Dhulipudi Sreeramulu for the properties as covered under the present plaint schedule.

45.So, the evidence of the contesting defendants coupled with their documents though shows the recitals about the family arrangement, in the absence of any material particulars about the said alleged arrangement absolutely made their evidence not material to prove the factum of earlier oral partition either before or after the death of late Dhulipudi Satyanarayana for the properties as covered under the present plaint schedule. Here, it is also pertinent to state that mere marking documents is not suffice to prove its contents. The recitals in Exs.B16 to B21 and Ex.A11 show the covenant of family arrangement, but there are no particulars about the day or date of the said arrangement and number of persons participated in the said arrangement and particulars of the properties fell to the share of particular persons, how entitle the defendants to canvass before this court that their plea of earlier oral partition is proved. Mere marking of documents do not amounts to the admission of its contents as settled in the observation held by their lordships in AIR 1971 SC 1865 between

Sait Tarajee Khimchand and Others vs. Yelamarti Satyam and 52 O.S.386/2007

Others wherein the observation by their lordships of Hon’ble Apex

Court that “mere marking of a document as an exhibit does not dispense with the proof of document”. The defendants not even tried to examine any one of the elders to the said oral partition in order to prove the said factum which is fatal to their claim. Non- examination of any one of the persons witnessed the alleged partition made this court to draw an inference that there is no such earlier partition and as such none were examined.

46.Now, let us see the evidence of plaintif side witnesses whether shows any probabilities in the case of the defendants to believe their version. The one and only witness on behalf of the plaintif is P.W.1 who is none other than the plaintif who got filed his chief affidavit reiterating the contents of the plaint. Through this witness, 24 documents were marked as Exs.A1 to A24. Out of them, Exs.A1 to A3 are nothing but the legal notice and the unserved returned covers and postal acknowledgements from the defendants 1 to 23. It is an admitted fact that the plaintif got issued a legal notice on 1-2-2007 before filing of the present suit for his prayer of partition. Exs.A6, A7 and A24 are nothing but the certified extracts of registered sale deeds in favour of Dhulipudi

Sreeramulu and others for the present plaint A and B schedule properties. Now, it is relevant to refer the document under Ex.A6.

This document is for the property covered in Item No.1 of A schedule admeasuring Ac.100.00 cents covered by S.No.55/15.

This document was executed by Gopaluni Ramalingaiah in favour of Sreeramulu and his sons Radhakrishna Murthy, Raghupathirao, 53 O.S.386/2007

Satyanarayana and Kunche Sitaramaiah(son-in-law of Sreeramulu).

Ex.A24 is another sale deed executed by Gopaluni Ramalingaiah on 11-7-1959 in favour of Puligujjula Venkaiah, Kunche

Subrahmanyeswararao, Dhulipudi Sreeramulu, Lakshmipathirao and Gopalarao. The property covered under this document is

Ac.50.00 cents covered by S.No.55/10 i.e., Item No.2of A schedule property. Here it is pertinent to state that Item No.2 of A schedule property was initially not included in the present plaint schedule and subsequently by moving an application the said property was added in the schedule as Item No.2. Admittedly, the pleadings of the plaintif are vague and not specific to state the names of the executants and the names of the purchasers of the property covered under Exs.A6 and A24. Ex.A7 is another registration extract of the registered sale deed dt.27-7-1962 executed by one

Sristi Ramaiah in favour of Sreeramulu. The property covered under the said document is under four diferent extents in seven diferent survey numbers. They are that Ac.8.00 cents in S.No.62,

Ac.7.00 cents in S.No.63, Ac.10.00 cents in S.No.61, Ac.12.00 cents in S.No.25 and 26 and Ac.8.00 cents in S.No.19 and 20. This property is located at Annasumudram panchayat of

Chowtappacharla village. In this context, here it is also relevant to refer the plea of 8th defendant by placing Ex.B1 unregistered Will contending that the property covered by Items 2 to 4 of B schedule were bequeathed to him by his father under Ex.B1 Will which was denied by all the contesting defendants apart from the plaintif.

Exs.A4 and A5 are two certified copies of the sale deeds executed by Nagandla Sambasivarao in favour of Dhulipudi Sivarama Prasad 54 O.S.386/2007 and Dhulipudi Saibabu who are none other than the sons of

Lakshmipathirao. The title of the executant referred under the said document is nothing but the earlier sale deed of the year 1984 when executed by Lakshmipathirao in favour of the said Nagandla

Sambasivarao under Ex.B6. Ex.A8 is the settlement deed executed by Lakshmipathirao in favour of his wife Kameswaramma for part of Item No.1 of plaint A schedule. Ex.A9 is the registered settlement deed executed by Radhakrishna Murthy in favour of his son Srinivasarao(D29) for Ac.15.00 cents who in turn executed

Ex.A10 sale deed in favour of 20th defendant. Here the recitals under Exs.A8 to A10 nowhere referred the fact of earlier oral partition as pleaded by the defendants. Ex.A11 is another document of the year 2006 executed by Radhakrishna Murthy in favour of one Karupilli Gangaiah. The schedule covered under the said document is for Ac.5,26 cents covered by S.No.55/13. In this document, the title of the executant referred as family arrangement among the family members which is similar to that of the recitals found in Exs.B16 to B22.

47.Exs.A12 to A14 are the sale deeds of the year 2007 executed by Kunche Rajeswararao(D14) in favour of third parties for the property covered by S.No.55/15. The said Kunche

Rajeswararao is none other than one of the legal heirs of Kunche

Ranganayakamma (daughter of Sreeramulu). Exs.A18 to A23 are six registered sale deeds dt.27-11-2006 executed by Kunche

Sivaleela(D12) in favour of third parties for the property covered by

S.Nos.55/10, 55/11 and 55/12. The executant is none other than 55 O.S.386/2007 12thdefendant who is one of the legal heirs of

Subrahmanyeswararao. In all the sale deeds as referred above shows the title of the executants as their inherited property. The contention of the defendants with regard to their earlier oral partition among the legal heirs of Dhulipudi Sreeramulu after his death in the year 1974 was nowhere found in the documents that were exhibited either in A or in B series. Now, it is relevant to refer the cross examination of P.W.1 which was done by the counsel for the defendants at length.

48. Let us see the cross examination of P.W.1 which was done by the counsel for the contesting defendants initially. The first paragraph of the cross examination dt.3-8-2011 shows the statement of P.W.1 that he got filed the suit for partition for an extent of Ac.145.00 cents i.e., for Item No.1 of A and B schedule property. The later statement shows that out of the schedule property, each family member is cultivating their respective shares of the property. He got Ac.20.00 cents of land towards his share out of Ac.100.00 cents of A schedule and Ac.7.00 cents of B schedule. He is in management and possession of his share of

Ac.27.00 cents of land. This is the area where the counsel for the defendants submitted their arguments that what else is required to prove the contention of the defendants for their plea of earlier oral partition. When P.W.1 himself admitted that he has been in possession and enjoyment of his Ac.27.00 cents covered in A and B schedule properties how the present suit is maintainable. The counsel for the 8thdefendant further referred the cross 56 O.S.386/2007 examination of P.W.1 in the later portion when stated that in the year 2003 when he went to mandal office, Vinukonda to obtain pattadar passbook in respect of property fell to his share by that time he came to know that the 5th defendant settled Ac.15.00 cents of land in favour of his son, namely, Srinivasarao(D29) in respect of

A schedule property. By referring the said statement, the argument went on stating that the plaintif also approached the revenue authorities in order to get pattadar passbook and title deed for the properties which were fell to his share in the earlier oral partition. The arguments submitted by the contesting defendants are absolutely not probable and justifiable. When the cross examination of 8th defendant as D.W.2 shows that there was no partition took place among the sons of Dhulipudi Sreeramulu for

A schedule properties which is similarly supported by D.W.6 who is none other than the son of 5th defendant how made the defendants to canvas before the court that there was an earlier oral partition among the sons of Sreeramulu and the plaintif admitted in his cross examination about the said fact and he has been in possession and enjoyment of Ac.27.00 cents as stated by him in his cross examination. This court is not agreeing with the argument of defendants particularly with reference to the statement of P.W.1 at a stray which was not at all found in the later portion of his cross examination which was went at length altogether 10 to 12 pages. The entire cross examination of P.W.1 when culled out the plaintif denied the contention of the defendants with regard to the earlier oral partition among the sons of Dhulipudi Sreeramulu. As this court already observed in the 57 O.S.386/2007 above referred paragraphs about the contention of the defendants who unable to furnish the particulars of the alleged oral partition including its date and the particulars of the shares that were fell to the shares how they can take advantage in the stray sentence of

P.W.1 in order to come to a conclusion that the earlier oral partition was sufficiently proved through P.W.1. When the own contention of the plaintif for his share over the properties of A schedule is 1/9th in the 1/5th share of late Sreeramulu and 1/9th share in B schedule which is altogether Ac.3.33 cents + Ac.5.00 cents. Then how his statement at a stray for Ac.27.00 cents contrary to the bonafides is sustainable to any ordinary purdent man. In this context, it is also relevant to refer the suggestions that are put to the witness when admitted in his cross examination that himself, the 5th defendant and father of the 7th defendant executed an agreement of sale on 5-5-1985 in favour of Janardhanarao, Narasaiah and Satteaiah for an extent of Ac.30.00 cents of land. To that statement, witness added that the extent is not Ac.30.00 cents and it was Ac.45.00 cents. Counsel for the defendants 5 and 8 started suggesting that the share of plaintif was withheld by the vendees under the sale agreement and unable to recover the possession from the vendees, he got filed the present suit, which was denied by the witness. Admittedly the cross examination of P.W.1 shows that the witness admitted the execution of sale agreement in favour of third party along with the 5th defendant and father of the 7th defendant for an extent of Ac.45.00 cents. But, according to the defendants, the same is only for an extent of Ac.22.00 cents and Ac.15.00 cents and the vendees occupied the share of plaintif’s property 58 O.S.386/2007 when he failed to return the earnest amount received by him towards advance, but to prove the said contention, there is no material either oral or documentary on behalf of the contesting defendants. If it is presumed for argument sake that the property covered under the said agreements is the share of plaintif under present disputed schedule how the statement of P.W.1 at the earliest point of cross examination i.e., he has been in possession and enjoyment of Ac.27.00 cents would be helpful to the case of the defendants to prove their contention of earlier oral partition. If at all P.W.1 has been in possession and enjoyment of the alleged

Ac.27.00 cents of land covered by plaint A and B schedule properties as admitted by him how the further contention of defendants that the vendees of alleged agreement of sale are in possession and enjoyment of plaintif’s share in the earlier oral partition as probable and tenable in order to believe the said version to any ordinary prudent man who acts under the supposition that the same would exists in such circumstances.

Non-examination of any one of the vendees of the alleged agreements is fatal to the case of the defendants. Intentionally their evidence was withhold, if at all adduced the same would goes against to their case. So, the inconsistency in the cross examination of P.W.1 as stated by the witness with lot of variation similarly would not helpful to the case of the defendants to prove their version that there was an earlier oral partition among the legal heirs of late Sreeramulu for the properties covered under

Exs.A6, A7 and A24.

59 O.S.386/2007

49.Now, let us see the evidence of D.W.1 who is none other than the 7th defendant one of the legal heirs of late Venkata

Gopalarao filed his chief affidavit contending that the properties of his paternal grandfather are not yet partitioned since he died intestate and he along with his mother 6th defendant are entitled to share of his father Gopalarao in the property of late Sreeramulu.

This witness was thoroughly cross examined by all the contesting defendants who tried to elicit through the witness about earlier oral partition of plaint schedule properties which are all denied by the witness. This witness not even admitted the contention of defendants with regard to the property of the 5th defendant that was fell to his share in the earlier partition which was disposed of to the 20th defendant under the registered sale deed. The entire contention of the defendants was denied by the witness nowhere admitted the earlier oral partition among the legal heirs of late

Dhulipudi Sreeramulu. However this witness similarly admitted the execution of sale deed in favour of third parties by giving a G.P.A., in favour of Lagadapati Venkatarao for the property situated at

Vinukonda which is similar to that of the admissions of plaintif as

P.W.1 pertaining to the documents under Exs.B16 to B22. This witness in his statement stated that he along with mother and sisters got partitioned the properties of their father after his death which are all borne on record. However admittedly no such document was tendered on his behalf to prove the said contention.

However, there is no material in the cross examination of D.W.1 to support the version of the contesting defendants to prove their 60 O.S.386/2007 contention of earlier oral partition about 50 years back as pleaded in their written statements.

50.At the cost of repetition, now, it is relevant to sum up the respective contentions of defendants coupled with the cross examination of P.W.1 and D.W.1. As could be seen from the pleadings of the defendants 5, 8 and 29, there was an earlier oral partition among the sons of Dhulipudi Sreeramulu for his self- acquired properties after his death in the year 1974. There are no particulars either in the pleadings or in the evidence of defendants about the date, month or year when the said alleged oral partition had been taken place as pleaded by them. Similarly, there are no particulars about the shares or the particulars of the properties that were fell to the shares of each respective sharer in the said alleged oral partition. Quite contrary to the pleadings of the defendants, they adduced evidence through the defendants 8 and

29. The 8th defendant as D.W.2 in his cross examination stated that there is no partition of plaint A schedule properties and Items 2 to 4 of B schedule properties are bequeathed to him by his father late Sreeramulu under Ex.B1 Will. The 29th defendant as D.W.6 though pleaded the oral partition of plaint schedule properties as reiterated in the written statement of the 5th defendant, contrary to the said contention, improved in his chief examination stated that only A schedule properties were got partitioned and B schedule properties were purchased by the 5th defendant from Dhulipudi

Sreeramulu under a possessory sale agreement dt.15-11-1971 and out of the said items, Item No.1 of B schedule property was sold 61 O.S.386/2007 away by the 5th defendant to the 27th defendant who has been in possession and enjoyment of the said item and the remaining items are with the possession and enjoyment of the 5th defendant.

Quite contrary to the evidence and pleadings of the defendants, the admissions in the cross examination of P.W.1 at a stray shows that he got Ac.20.00 cents in A schedule property and Ac.7.00 cents in B schedule property and in all Ac.27.00 cents are in his possession and enjoyment which is contrary to the case of the defendants. When P.W.1 stated about his possession and enjoyment of Ac.7.00 cents of land in B schedule, the defendants 8 and 29 who contested before this court about their right and title besides possession over the B schedule properties not even put a single suggestion denying the evidence of P.W.1 shows the ambiguity in the contention of respective parties. When the defendants 8 and 29 are harping that the items 2 to 4 of B schedule are with their exclusive possession and enjoyment how the statement of P.W.1 in his cross examination about the Ac.7.00 cents of B schedule is in his possession and enjoyment would be helpful to discharge their onus to prove their contention that there was an earlier oral partition about 50 years ago. So, the evidence and documents on behalf of the defendants do not show any probability to believe their version to prove their contention.

Accordingly, this issue is answered against the defendants.

Issue No.3:

51.The contention of all the contesting defendants is that the suit is bad for non-joinder of necessary parties. According to 62 O.S.386/2007 them, the plaintif failed to implead all the proper and necessary parties in order to claim share in the disputed property. Let us see the evidence on the said aspect whether proved the contention of the defendants or not. Initially the defendants concentrated about the names of the claimants of Ex.A24. According to them, one

Puligujjula Venkaiah is one of the purchasers of the property i.e.,

Item No.2 of A schedule property. The plaintif though impleaded the said item as one of the properties in the plaint schedule he failed to implead the said Puligujjula Venkaiah as proper and necessary party which is fatal to the case of the plaintif. On perusal of Ex.A24 shows that the property covered under the said sale deed was purchased by late Dhulipudi Sreeramulu along with

PuligujjulaVenkaiah,KucheSubrahmanyeswararao,

Lakshmipathirao, s/o Sreeramulu, Gopalarao, s/o Sreeramulu from

Gopaluni Ramalingaiah. When the contention of the plaintif that the property covered under Ex.A24 is not yet partitioned by the legal heirs of Dhulipudi Sreeramulu and placed the entire extent of

Ac.50.00 cents covered under the said document in the present plaint schedule for the relief of partition, all the claimants under the said document are proper and necessary parties being co- sharers. So, not showing the person Puligujjula Venkaiah is certainly fatal to the case of the plaintif as he being the proper and necessary party to the proceedings. The other contention of the defendants is that the legal heirs of late Venkata Gopalarao were shown as defendants 6 and 7, but the daughters of Venkata

Gopalarao were similarly not shown as proper and necessary parties. D.W.1(D7) admitted in his cross examination that his 63 O.S.386/2007 sisters were not shown as parties to the proceedings. So, non impleadment of the daughters of Venkata Gopalarao is similarly fatal to the case of the plaintif. Now, coming to the other contention of the contesting defendants that the legal heirs of late 27th defendant, the second daughter of 12th defendant, son of 3rd defendant, the legal heirs of late 38th defendants are all proper and necessary parties having right and share in the plaint schedule property and they are not shown in the plaint similarly made the claim of plaintif as bad under law. Admittedly, all those persons are not shown as parties to the proceedings. Here it is relevant to refer the citation submitted by the 8th defendant reported in 2013 (3) ALD 269 between Jingulaiah Subrahmanyam Naidu vs.

Jingulaiah Venkatesulu Naidu (died) and others where in their lordships of Hon’ble High Court of A.P., in their observation held that “in a suit for partition it is not uncommon that the properties which are purchased in the names of the members of the family though not coparceners are included. As a matter of fact, the binami transactions (Prohibition Act), itself exempts such transaction from its purview. However, once a person who is not a coparcener, it becomes obligatory on the part of the plaintif to implead such person so that the title in respect of such items is decided efectively.” In the absence of registered owner the question relating to title of such properties cannot be divided. The above observation by their lordships when applied to the present case on hand admittedly one of the registered owner of Ex.A24

Puligujjula Venkaiah is proper and necessary party to the proceedings in order to decide the question relating to the title of 64 O.S.386/2007 the said property covered under Ex.A24. So, the contention of defendants with regard to non-joinder of necessary parties to the suit claim said to have been proved and the same is fatal to the case of the plaintif. Accordingly, this issue is answered.

Issue No.1:

52.The contention of the plaintif right from the beginning is that he is in joint possession and enjoyment of plaint A and B schedule properties. But on the other hand, the contention of all the contesting defendants is that almost all the property is in the possession and enjoyment of third party purchasers and the court fee paid by the plaintif is not correct and he has to pay the fee as per the provisions U/s.34(1) of A.P.C.F and S.V.Act. In order to prove the said contention, let us see the cross examination of

P.W.1. P.W.1 at one point of time when elicited by the counsel for defendants stated that the entire A schedule property consisting of

Ac.100.00 cents was sold away to third parties by the title holders except himself and some others. His statement further shows the defendants 5, 12 and 1 sold away their respective shares.

Similarly in his cross examination he stated that he was in possession and enjoyment of Ac.5.00 cents of land from 1984 to 2004 out of A schedule property and the 5th defendant driven him out from the said extent which shows the contention of contesting defendants is sustainable. Similarly, the cross examination of

P.W.1 in further shows till the death of his father he never went to B schedule property. In the year 2001 for the first time they located the B schedule property. In the year 2001, he came to know that 65 O.S.386/2007 the 5th defendant intend to sell the property of B schedule to the 27th defendant and he came to know that the 5th defendant sold away the property of Ac.15.00 cents out of Ac.45.00 cents in B schedule to the 27th defendant. He does not know whether any persons under the possession and enjoyment of Ac.45.00 cents of land and he never visited the B schedule property subsequent to filing of the suit to know who are in possession of B schedule property. Similarly, his cross examination by way of further chief affidavit after impleading item No.2 of A schedule went on stating that he does not know the present boundaries for Item No.2 of A schedule and he does not know the resurvey numbers for the said item and he does not know where the said property is situated and he did not see who is the owner of the said property in revenue record which are all quite enough to conclude that the contention of plaintif that he is in joint possession and enjoyment of the present plaint A and B schedule properties are all palpably false knowing fully well that the total extent of Item No.1 of A schedule property was already disposed of to the third parties who are in possession and enjoyment of the said item got filed the present suit as if the same is in joint possession and enjoyment of all the coparceners of late Dhulipudi Sreeramulu. So, the court fee paid under sec.34(2) of A.P.C.F. and S.V.Act is not correct. Accordingly, this issue is also answered against the plaintif.

Issue No.4:

53.In view of the findings on Issue Nos.1 and 2, the property is not in joint possession and enjoyment of the plaintif.

66 O.S.386/2007

The court fee paid under the provisions of Sec.34(2) of A.P.C.F and

S.V.Act is also incorrect and the plaintif ought to have been paid the same under the provision of Sec.34(1) of the said Act.

Accordingly, this issue is answered.

Issue No.5:

54.In view of the findings on Issue Nos.1 to 4 and the cross examination of P.W.1 at one point of time admitted that he does not know the averments of the plaintif coupled with lengthy cross examination of P.W.1 who stated various versions which are all manifest to conclude that the plaintif has no knowledge about the plaint schedule properties and its existence and his knowledge about prior sales of Item No.1 of A schedule property to various third party purchasers who are in possession and enjoyment of the said property, got filed the present suit and not impleaded all the proper and necessary parties to the proceedings not entitled for the relief of partition.

55.Last but not least about the one more contention of the contesting defendants concerning the partial partition which is not at all maintainable to the plaintif for his claim of partition.

According to them, there are other properties of Sreeramulu situated at Vinukonda as admitted by P.W.1 are not shown in the present plaint schedule which is also fatal to the claim of the plaintif, for which the cross examination of P.W.1 is itself enough coupled with Ex.B3 to show that there are other properties to late

Dhulipudi Sreeramulu who purchased the same on his own during his life time and the reasons best known to the plaintif they were 67 O.S.386/2007 not included in the present schedule. So, on that score, also the claim of the plaintif may be liable for dismissal. In this context, it is also relevant to refer the citation submitted by the counsel for the 8th defendant reported in 2008 (4) ALD 567 between

N.Jangireddy and others vs. Yellaram Narasimha Reddy and others wherein the observation by their lordships of Hon’ble High

Court of A.P., in their observation held that “non-inclusion of all properties of joint family would definitely efect the rights of alienees and working out equities even at the stage of final decree proceedings.” Suit for partial partition as such cannot be maintained. The observation by their lordships is similarly applicable to the present case on hand, the plaintif who filed the present suit for the relief of partition failed to implead all the proper and necessary parties to the proceedings similarly failed to implead all the properties of late Sreeramulu which are to be partitioned. Accordingly, this issue is also answered against the plaintif.

Additional Issue:

56.One of the material contentions in the claim of the 8th defendant is that items 2 to 4 of the B schedule property are his absolute properties by virtue of the Will executed by his father in his favour on 4-2-1969 as his father died testate on 2-4-1974, the

Will was acted upon and he became the absolute owner of the plaint schedule property. In order to prove the said factum, the 8th defendant besides examining himself as D.W.2 also adduced the evidence of one of the attestors of Ex.B1 Will as D.W.2. Before 68 O.S.386/2007 adverting to the evidence of D.Ws.2 and 3, here it is relevant to refer the rivalry contentions of the plaintif, the defendants 6 and 7 and the other contesting defendants who are none other than the legal heirs of late Dhulipudi Sreeramulu. According to the version of plaintif and the defendants 6 and 7 and the legal heirs of the 11th defendant i.e., the defendants 44 to 47 is that late Dhulipudi

Sreeramulu died intestate and the alleged Will is a set up Will by the 8th defendant in order to grab the property of Dhulipudi

Sreeramulu referred as B schedule. The contention of the defendants 5 and 29 is that Dhulipudi Sreeramulu during his life time executed an agreement of sale coupled with possession in favour of the 5th defendant on 15-11-1971 with regard to B schedule property and since then the 5th defendant had been in possession and enjoyment of B schedule property, subsequently sold an extent of Ac.15.00 cents i.e., item 1 of B schedule in favour of the 27th defendant under a valid registered sale deed for consideration and he had been in possession and enjoyment of the said property after purchase of the said item.

57.Now, let us see the evidence of 8th defendant whether shows any probabilities in order to prove his contention that late

Dhulipudi Sreeramulu died testate particularly with reference to the property i.e., items 2d to 4 of plaint B schedule. The chief affidavit of the 8th defendant as D.W.2 is nothing but reiteration of the contents of the written statement and through this witness,

Ex.B1 which is the unregistered Will dt.4-2-1969 was got marked.

D.W.2 was thoroughly cross examined by the counsel for the 69 O.S.386/2007 plaintif and the other contesting defendants. During the cross examination when elicited by the counsel for the plaintif, his statement shows that he cannot say the age of his father at the time of Ex.B1 Will. It was executed by his father in the presence of the 8th defendant when scribed by one Dharmavaram Gopalarao of

Narasaraopet. His father was with him at Chilumuru of Tenali mandal and he does not remember whether there is any mention in Ex.B1 about the place of his father’s residence by that time.

However the witness admitted that in paragraph 6 of Ex.B1 the same referred as Kurnoolu jilla, Narasaraopet revenue district,

Markapuram sub-division. When the counsel for the plaintif wants to elicit through the witness to state whether the Narasaraopet is never within the revenue district of Kurnool, which is not known to him. The later portion of the cross examination shows that on the date of Ex.B1, the witness was at Narasaraopet and he stayed at

Narasaraopet for a period of 10 years and his father mostly stayed with him and on the date of execution of Ex.B1, his father was at

Narasaraopet along with him and he did not come from Chilumuru to Narasaraopet to execute Ex.B1 and he has no knowledge about the attestors of Ex.B1 Will and they were brought by the document writer and his father had acquaintance with the attestors and one of the attestors Peta Rangarao is no more and the other attestor

D.W.3 is an agriculturist and cultivating their lands on lease at

Gonepudi. The statement of D.W.2 further shows that the execution of Ex.B1 will took place at 4:00 pm., in his house at

Narasaraopet when prepared by the scribe. Now, it is relevant to refer the covenants of Ex.B1 Will. Paragraph No.4 of the Will begins 70 O.S.386/2007 with the age of the testator i.e., 70 years. But, the evidence of

D.W.2 shows he had no knowledge about the age of his father as on the date of Ex.B1, though contending that he looked after the welfare of his father. The other contents of the will at para No.4 which reads as follows:

"వభగమలఅయనపదపకకతఆససననససరరతదదవవమతసకపదకచకనయo టమ. నన సకపదకచకననఆససలఇపపటకనషడవలఆససమతతమనలలయననద".

These are the recitals in Ex.B1 which are quite contrary to the case of the 8th defendant. As per the pleadings of the 8th defendant, there was an earlier oral partition of the schedule properties except items 2 to 4 of B schedule after the death of his father late

Sreeramulu. Similarly, the case of the defendants 5 and 29 is that the B schedule property was sold away by Sreeramulu to the 5th defendant under a possessory sale agreement dt.15-11-1971 which is also known to the 8th defendant. But, quite contrary to the respective contentions, the covenants of the Will shows that the schedule property referred in Ex.B1 was the left over property i.e., self-acquired property of Sreeramulu as on the date of Ex.B1 Will i.e., dt.4-2-1969 which shows ambiguity in the case of the 8th defendant even to prove the contents of Ex.B1.

58.Now, let us see the cross examination of D.W.2 by the counsel for the plaintif when tried to elicit the presence of persons and the recitals of the Will beside the time of transaction covered under the said Will whether corroborates with the evidence of

D.W.3 who is one of the attestors of Ex.B1 Will in order to prove the execution of the Will under the provisions of Sec.68 of the Indian 71 O.S.386/2007

Evidence Act. Before that, here is it is relevant to refer the important material admission in the cross examination of D.W.2 when suggested by the counsel for the 29th defendant about the execution of agreement of sale with possession by Dhulipudi

Sreeramulu in favour of the 5th defendant for B schedule property.

D.W.2 has very much admitted the execution of said agreement of sale with possession by Sreeramulu in favour of the 5th defendant for B schedule property. Similarly, D.W.2 also admitted that almost all they sold away the B schedule property and in possession of some of the property. So, this is the other area where the evidence of D.W.2 in his cross examination is quite contradictory when compared with his chief examination. When the 8th defendant pleaded the execution of Ex.B1 Will in his favour by his father for Items 2 to 4 of B schedule properties how the same would be material in order to consider his contention when compared with his admission that the later document of the year 1971 i.e., an agreement of sale coupled with possession for the total B schedule property was executed by Dhulipudi Sreeramulu in favour of the 5th defendant. No explanation is forthcoming either from the 8th defendant or from his counsel in order to explain the ambiguity with regard to the admission of D.W.2 in his cross examination. When D.W.2 had knowledge about the execution of the agreement of sale by his father in favour of the 5th defendant for the total B schedule property wherein the 5th defendant sold

Item No.1 of B schedule in favour of the 27th defendant in the year 1983 which is within the knowledge of all the legal heirs of

Dhulipudi Sreeramulu, how his further contention with regard to 72 O.S.386/2007 the execution of Ex.B1 Will in his favour on 4-2-1969 is sustainable.

Here it is also relevant to refer the pleadings of the 8th defendant by referring the date of Will in his written statement on two diferent dates. Initially at one point of time, the same was referred as 4-2-1969 and subsequently as 24-2-1969. If it is presumed for argument sake that the same is a typographical error, what about the material in the cross examination related to the fact of insolvency proceedings. During the course of cross examination, at one point of time, D.W.2 admitted that he was declared as insolvent in I.P.41/76. He also admitted that in the said

I.P he did not mention the execution of Will by his father in his favour, the said statement of D.W.2 is a material conclusion shows suspecion about the existence of alleged Will on 4-2-1969. if really the said Will was in existence in the year 1969 when executed by late Sreeramulu, the same ought to have found in the I.P proceedings of the year 1976 i.e., I.P.41/76. So that itself manifest that the existence of alleged Will as on 4-2-1969 is doubtful.

Now, let us see the evidence of D.W.3 who is a third party to the proceedings who filed his chief affidavit contending that Dhulipudi

Sreeramulu expressed his willingness voluntarily to execute the

Will under Ex.B1 on 4-2-1969 in favour of the 8th defendant and accordingly he was present at the time of execution. Sreeramulu in a sound and disposing state of mind, executed Ex.B1 Will in the house of 8th defendant at Narasaraopet in respect of B schedule properties in an extent of Ac.30.00 cents located at

Chowtappacharla in the presence of 8th defendant, D.W.3 scribe and another attestor. Dammavaram Gopalarao of Narasaraopet 73 O.S.386/2007 scribed the Will on the instructions of Sreeramulu by showing some papers to him. The executant put his signatures on the said Will in their presence, later by the first attestor i.e., D.W.3 and the second attestor Peta Rangarao put their signatures on Ex.B1. So, the evidenceof D.W.3 is an attempt made by the 8th defendant in order to prove the execution of Ex.B1 Will in accordance with the provisions of the Indian Evidence Act since it being a compulsory attestable document. This witness was thoroughly cross examined by the counsel for the defendants 6 and 7. In this context, it is also relevant to refer the argument of the counsel for the 8th defendant who pointed out the cross examination of the plaintif when reported as “no cross” initially. Though subsequently by moving an application, the witness was recalled in order to report the cross examination of D.W.3 by the plaintif as adopting the cross examination of the defendants 6 and 7, the initial statement of plaintif reporting the cross examination of D.W.3 as “no cross” is itself enough to conclude that the evidence of D.W.3 remains unchallenged and thereby his evidence proved execution of Ex.B1

Will as true and valid similarly binding on the plaintif, but such an argument on behalf of the counsel for the 8th defendant is not worthy of credence. The Ex.B1 being a Will is a compulsory attestable document and the 8th defendant ought to have proved the contents of the said Will following the provisions of section 68 of the Indian Evidence Act. Mere reporting no cross examination by the counsel for the plaintif which is an error apparent on the record does not helpful to the case of the 8th defendant, in order to come to a just conclusion that the same is itself enough to declare 74 O.S.386/2007 the disputed Will as true and genuine. Here the counsel for the defendants 6 and 7 who have been similarly disputing the disputed

Will under Ex.B1 cross examined the witness at length and elicited the material which is contradictory to the case of the 8th defendant.

During the cross examination, this witness stated that he does not know about the entire properties of Sreeramulu except Ac.30.00 cents of land, no properties were mentioned in Ex.B1. He does not know the age of Sreeramulu on the date of Ex.B1. This is the similar statement made by D.W.2 who is none other than the son of the testator not even knew the age of his father as on the day the disputed Will was executed under Ex.B1 for the reasons D.W.2 alone attended his welfare. D.W.2 in his cross examination further stated that himself, Sreeramulu(testator) and another witness came to Narasaraopet from Chilumuru and Sreeramulu brought the scribe to the house of D.W.2 situated near railway station. So, this is another statement in the cross examination of D.W.3 is contradictory to the statement of D.W.2. According to D.W.2, the executant of Ex.B1 Will Sreeramulu was at Narasaraopet on the date of Ex.B1 along with him, but contrary to the same, the evidence of D.W.3 shows that late Sreeramulu came from

Chilumuru to Narasaraopet along with the attestors 1 and 2 i.e.,

D.W.3 and the second attestor. But, as per the statement of

D.W.2, the scribe of the Will brought the attestors who are not known to D.W.2. The remaining portion of the cross examination of

D.W.3 states that the witness has no knowledge about the stamp paper or the white paper used for the Will and whether any discussion had taken place for registration of the Will and the 75 O.S.386/2007 number of papers used for preparation of the Will which are all shows and concludes that this witness had no knowledge about the particulars of the alleged Will under Ex.B1. On perusal of the Will under Ex.B1 shows that it was a hand script on a single paper by the scribe. But, the witness not even state the nature of the paper or the number of papers used by the scribe to prepare Ex.B1 Will which is said to be prepared and executed in his presence. Here it is relevant to refer the cross examination of D.W.3 at one point of time when stated that he used to cultivate Ac.1.50 cents of

Sreeramulu’s land at Chilumuru village on lease for 3 years, but the evidence of D.W.2 is otherwise and according to him, D.W.3 is a tenant of their lands at Gonepudi, so it is not at Chilumuru as stated by D.W.3. So, this is another area shows ambiguity to state the avocation of D.W.3 who is said to be the attestor of

Ex.B1 Will to prove its execution. The cross examination of D.W.3 when culled out the entire particulars that are elicited through the witness are not at all corroborating with the evidence of D.W.2 on the material aspects. As could be seen from the evidence of

D.W.3, the testator came from Chilumuru along with the attestors to the house of D.W.2 and the testator himself brought the scribe to the place of transaction. But, quite contrary to the evidence of

D.W.3, the evidence of D.W.2 reads as the testator was well with the witness in his house at Narasaraopet as on the date of execution of Ex.B1 Will and the scribe himself brought the attestors to the place of transaction who are not known to the witness. If really the attestor D.W.3 was present at the place of transaction as stated by D.W.2 he ought to have knowledge about the material 76 O.S.386/2007 particulars with reference to the Will or atleast the number of papers used to prepare the Will which are all unknown to the witness is itself enough to conclude that the evidence of D.W.3 is not at all suffice to prove the execution of Ex.B1 Will by D.W.2. The evidence of D.W.3 is not at all corroborated with the evidence of

D.W.2 in any one of the material facts in order to come to a just conclusion that his evidence is enough to prove the execution of

Ex.B1 Will by late Dhulipudi Sreeramulu for the property covered therein. So, the argument of the counsel for the 8th defendant that the counsel for the plaintif reported no cross examination at the initial time would not suffice to show any merits in his contention to prove the execution of Ex.B1 Will. The cross examination of

D.W.2 at one point of time when stated that almost all the B schedule property was sold away by them is a similar contradictory evidence on his behalf apart from the other contentions which are all similarly noticed by this court in the above discussion. Here it is also relevant to refer the citation submitted by the counsel for the 8th defendant reported in 2012 (3) ALD 88 between Yadla

Venkata Subbamma and others vs. Yadla Punnamma and others wherein the observation by their lordships of Hon’ble High

Court of A.P. is that “it is not uncommon that suits for partition are filed by some of the coparceners or co-owners, not being aware of prior partition or a diferent kind of disposition on earlier occasions.

Though non-reference of the same in the plaint may not have any impact on the case. At least when a specific plea of those lines is raised in a written statement, the plaintif is under obligation to file a rejoinder if he intends to dispute such plea. In the absence of 77 O.S.386/2007 rejoinder, the plea raised by the defendant virtually stands unrebutted.” The counsel for the 8th defendant by submitting the above ratio wants to draw the attention of this court with a submission that non-filing of rejoinder by the plaintif disputing the execution of Ex.B1 Will is itself enough to conclude the issue in favour of the 8th defendant. But the ratio laid down by their lordships in the above case law is not applicable to the present case on hand. Here, there are number of suspicious circumstances in the contention of the 8th defendant when compared the recitals of the Will with his pleadings as averred in the written statement.

Not only tht the evidence of D.Ws.2 and 3 which are not at all corroborated with any one of the material aspects completely ruled out the case of the 8th defendant to believe his version that Ex.B1

Will was executed by late Dhulipudi Sreeramulu during his life time for the property as referred in the said Will. In view of the above discussion as the evidence of D.Ws.2 and 3 are not corroborated on the material aspects to prove the execution of Ex.B1. The 8th defendant similarly failed to prove the execution of Ex.B1 as true and valid in order to bind the same on the plaintif. Accordingly, this issue is also answered against the 8th defendant.

Issue No.6:

59.In view of the findings on Issue Nos.1 to 5 and on

additional issue, the plaintif who failed to discharge his burden to

prove his joint possession over the plaint schedule properties and filed the suit without impleading all the proper and necessary parties and not impleaded all the properties of Sreeramulu are all 78 O.S.386/2007 not entitled him to get any relief in his favour. Since the suit is among the family members of the plaintif, all are liable to bear their own costs.

60.In the result, the suit is dismissed. Each party has to bear their own costs. The claim against defendant No.27 is dismissed as abated.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court this the 20th day of September, 2021.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif: PW1: Dhulipudi Raghupathirao (plaintif)

For Defendants: DW1: Dhulipudi Ravindra Babu DW2: Dhulipudi Lakshmipathirao DW3: Gurrala Mallikharjunarao DW4: Shaik Shamshuddin DW5: Shaik Shareef DW6: Dhulipudi Srinivasarao

DOCUMENTS MARKED

For Plaintif: Ex.A1: Office copy of legal notice dt.1-2-2007 Ex.A2: Unserved returned covers from the defendants 3 to 5 and 12 Ex.A3: Postal acknowledgements from the defendants 1, 2, 6 to 9, 11, 13 to 15, 19 to 23 Ex.A4: Registration extract of registered sale deed dt.31-3-1995 executed by Nagandla Sambasivarao in favour of Dhulipudi Sivarama Prasad Ex.A5: Registration extract of registered sale deed dt.31-3-1995 executed by Nagandla Sambasivarao in favour of Dhulipudi Saibabu Ex.A6: Registration extract of registered sale deed dt.11-7-1959 executed by Gopaluni Ramalingaiah in favour of Dhulipudi Sreeramulu and others 79 O.S.386/2007

Ex.A7: Registration extract of registered sale deed dt.27-7-1962 executed by Sristi Ramaiah in favour of Dhulipudi Sreeramulu Ex.A8: Registration extract of registered settlement deed dt.8-11-2002 executed by Dhulipudi Lakshmipathirao in favour of his wife Dhulipudi Kameswaramma Ex.A9: Registration extract of registered setlement deed dt.29-8-1984 executed by Dhulipudi Radhakrishna Murthy in favour of Srinivasarao Ex.A10: Registration extract of registered sale deed dt.19-1-2005 executed by Dhulipudi Srinivasarao in favour of Shaik Shamshuddin Ex.A11: Registration extract of registered of sale deed dt.6-12-2006 executed by Dhulipudi Radhakrishna Murthy in favour of Karupilli Gangaiah Ex.A12: Registration extract of registered sale deed dt.12-2-2007 executed by Kunche Rajeswararao Ex.A13: Registration extract of registered sale deed executed by Kunche Rajeswararao in favour of Koka Krishnamurhty Ex.A14: Registration extract of registered sale deed dt.12-2-2007 executed by Kuche Rajeswararao in favour of Pasupuleti Lakshmaiah Ex.A15: Registration extract of Form-B dt.31-3-2009 Ex.A16: Served copy of notice issued by Revenue Divisional Officer, Narasaraopet to the plaintif Ex.A17: Served copy of notice dt.5-12-2004 under Form-I issued by M.R.O., Vinukonda to the plaintif Ex.A18: Registration extract of registered sale deed dt.27-11-2006 executed by Kunche Subrahmanyeswararao in favour of Siddi Venkateswaramma Ex.A19: Registration extract of registered sale deed dt.27-11-2006 Kunche Subrahmanyeswararao in favour of Pasupuleti Lakshmaiah Ex.A20: Registration extract of registered sale deed dt.27-11-2006 executed by Kuche Leela kumari in favour of Adapala Bhudevi Ex.A21: Registration extract of registered sale deed dt.27-11-2006 executed by Kunche Sivaleela Kumari in favour of Kola China Venkateswarlu Ex.A22: Registration extract of registered sale deed dt.27-11-2006 executed by Kunche Sivaleela Kumari in favour of Baddepudi Siva Ex.A23: Registration extract of registered sale deed dt.27-11-2006 executed by Kuche Sivaleela Kumari in favour of Koka Krishna Murthy Ex.A24: Certified copy registered sale deed dt. 11-7-1959

For Defendants:

Ex.B1: Unregistered Will dt.4-2-1969 executed by Dhulipudi Sreeramulu Ex.B2: Rytwari patta in the year 1989 issued by Special Deputy Tahsildar, Markapur in favour of the 8th defendant 80 O.S.386/2007

Ex.B3: Registration extract of registered sale deed dt.15-3-1959 vide Doc.No.1069/1959 executed by Jonnalagadda Narasaiah and others in favour of Dhulipudi Sreeramulu Ex.B4: Proceedings of the Sub-divisional Magistrate and Revenue Divisional Officer Ex.B5: Registration extract of registered sale deed dt.30-4-1987 vide Doc.No.705/1987 executed by 8th defendant in favour of Dhulipudi Malleswari Ex.B6: Registration extract of the registered sale deed dt.17-5-1985 vide Doc.No.993/1985 executed by the 8th defendant in favour of Nagandla Sambasivarao Ex.B7: Certified copy of settlement deed dt.29-8-1984 executed by Dhulipudi Radhakrishna Murthy in favour of Dhulipudi Srinivasarao Ex.B8: Certified copy of sale deed dt.19-1-2005 executed by Dhulipudi Srinivasarao in favour of the 20th defendant Ex.B9: Certificate issued by the Mandal surveyor of Vinukonda Ex.B10: Adangal for the fasli 1422 in S.No.62 of Chavatapalem village, Vinukonda mandal Ex.B11: Adangal for the fasli 1422 in S.No.65/1 of of Chavatapalem village, Vinukonda mandal Ex.B12: Bunch of tax receipts four in number Ex.B13: Bunch of tax receipts Ex.B14: Pattadar passbook in the name of the 20th defendant Ex.B15: Title deed in the name of 20th defendant Ex.B16: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Raghupathirao and Krishna Prasad through their GPA holder Lagadapati Venkatarao in favour of Medisetty Srinivasarao Ex.B17: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murthy and his son Srinivasarao through their GPA holder Lagadapati Venkatarao Ex.B18: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of Rolla Anuradha Ex.B19: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of Jonnalagadda Lakshmaiah Ex.B20: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Srinivasarao through their GPA holder in favour of Kothamasu Krishna Murthy Ex.B21: Certified copy of the registered sale deed dt.25-4-2001 executed by Dhulipudi Radhakrishna Murhty and his son Krishna Prasad through their GPA holder in favour of Desu Sivasankar Ex.B22: Certified copy of the registered sale deed dt.16-4-2001 executed by Dhulipudi Raghupathirao and Dhulipudi Krishna Prasadarao in favour of Lagadapati Venkatarao 81 O.S.386/2007

Ex.B23: Registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Thota Ramarao Ex.B24: Registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Thota Ramarao Ex.B25: Registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Dalavayi Sandeep Ex.B26: Registration extract of the registered sale deed dt.6-8-2012 executed by the 20th defendant in favour of Dalavayi Vijaya Gowri Ex.B27: Certified copy of E.P.3/1985 in O.S.137/1981 on the file of Munsif Magistrate, Vinukonda Ex.B28: Certified copy of the cheque petition filed by the 8th defendant in E.P.3/1985 in O.S.137/1981 on the file of Munsif Magistrate, Vinukonda Ex.B29: Certified copy of full satisfaction memo filed by the 8th defendant in E.P.3/1985 in O.S.137/1981 on the file of Munsif Magistrate, Vinukonda Ex.B30: Served copy of the notice dt.22-10-1993 issued by the 8th defendant to 5th defendant through his counsel Ex.B31: Office copy of reply got issued by the 5th defendant to the advocate of the 8th defendant Ex.B32: Certified copy of registered sale deed dt.24-2-1983 executed by the 1st defendant and her sons in favour of Pasupuleti Krishna Murthy Ex.B33: Certified copy of the registered sale deed dt.15-4-1983 executed by the 3rd defendant and his sons in favour of Pasupuleti Krishna Murthy.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

1O.S.372/2014

In the Court of the Addl. Senior Civil Judge: Narasaraopet,

Present:- Smt. Sunkara Sridevi, Addl. Senior Civil Judge, Narasaraopet,

Thursday, this the 2nd day of September, 2021,

Original Suit No.372 of 2014 Between:

Kunkalagunta Samba Siva Rao, S/o.Kotaiah, 55 years, …Plaintif

And

1. Molatrati Raja Rao, S/o.Ananda Rao (DIED),

2. Dasari Lara Grace Sarojini, D/o.Vandanam, 61 years,

3. Molatrati Mery Vandanam, w/o.Late Raja Rao, 69 years,

4. Molatrati Sunil Kumari, D/o.Late Raja Rao, 43 years,

5. Molatrati Meenakshi, D/o.Late Raja Rao, 33 years,

6. Molatrati Praveen Kumar, S/o.Late Raja Rao, 42 years,

7. Molatrati Neeharika, D/o.Late Raja Rao, 40 years, Defendants 3 to 7 are added as LRs of deceased D1 as per the orders in IA No.644 of 2018 dated 28.01.2019.

…Defendants

This suit is coming on 14.06.2021 before me for arguments in the presence of Sri S. Ayyapa Raju, Advocate for the Plaintif and of Sri Chandra Anjaneyulu, M. Subhashini and M. Ramadevi, Advocates for the Defendants, upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This is a suit filed for declaration that the plaintif is the absolute owner of the plaint schedule property and for consequential permanent injunction, restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment of the plaintif over the plaint schedule property in any manner and for costs.

02.Initially the suit was filed by the plaintif against two defendants. Subsequently as per the orders in IA No.644 of 2018 2O.S.372/2014

dated 28.01.2019 defendants 3 to 7 are added as legal heirs of

deceased first defendant.

The brief averments of the plaint are as follows:

03.The plaintif is the absolute owner of the plaint schedule property, having right, title and possession over the same, as he purchased the same under two registered sale deeds dated 25.11.2006 vide document No.13739 of 2006 for a valuable consideration of Rs.25,000/- for item No.1 of the schedule property from Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali and also purchased another property i.e., item No.2 of the schedule property under a registered sale deed

dated 16.01.2007 vide document No.481 of 2007 for a

consideration of Rs.1,99,000/- from Sayini Ananda Babu, being the GPA holder of Shaik Meera Vali, Bolla Brahma Naidu and

Shake Showkath Ali respectively, who in turn purchased the property from Dontharaju Venkata Appa Rao and others. Since from the date of purchase the plaintif has been in peaceful possession and enjoyment of the plaint schedule property with absolute rights.

04.The schedule property is part and parcel of the total extents of Ac.10:94 cents. Originally the said property belonged to Kolalapudi Pitchamma, W/o.Sadasivudu, who got the property in a partition in between herself and her daughter-in-law under a registered partition deed dated 23.11.1884. The said Pitchamma sold the property of Ac.10:94 cents to Boda Manchemma, 3O.S.372/2014

W/o.Koti Lingam under a registered sale deed dated 29.06.1907 vide document No.1561 of 1907 and delivered possession of the same to them who enjoyed the same with absolute rights.

Subsequently, after the death of Boda Koti Lingam his wife

Manchemma and his daughter Swarna Vani Durgamba,

W/o.Veera Raghava Chari who succeeded the property as the legal heirs of Koti Lingam, sold the property of Ac.5:47 cents of

Northern portion to one Kakumanu Peda Peri Reddy, S/o.Rami

Reddy under a registered sale deed dated 09.02.1930 vide document No.313 of 1930 and delivered possession of the property to him. They also sold the Southern side portion of

Ac.5:47 cents to one A. Veeraiah on 09.02.1930.

05.Subsequently, the person Kakumanu Peda Peri Reddy,

S/o.Rami Reddy sold the property under two registered sale deeds dated 09.06.1940 vide document Nos.1668 and 1669 of 1940 respectively to Dontaraju Krishna Murthy, adopted son of

Mallikarjuna Rao and Dontaraju Veeramma, W/o.Mallikarjuna Rao and delivered possession of the property to them who have been in possession and enjoyment of the same with absolute rights.

06.As mattes stood thus, some persons including the defendants and their vendor namely Yasani Lakshmi,

W/o.Narasimhulu, D/o.Boda Narayana, granddaughter of Boda

Koti Lingam tried to encroach and grab the entire extent of

Ac.5:47 cents, then Dontaraju Venkata Appa Rao, S/o.Late

Krishna Murthy filed a petition before Land Grabbing Tribunal in 4O.S.372/2014

LGC No.76 of 1990 against those persons. The defendants herein were shown as respondents 26 and 27 therein. Their alleged vendor was also shown as second respondent.

Ultimately, the Land Grabbing Tribunal passed a reasoned judgment after full pledged trial on 18.07.1994 with a categorical finding that the defendants herein and their alleged vendor and some others have no manner of right whatsoever in the said property and the said property exclusively belongs to the vendors’ vendors’ family of the plaintif. The Hon’ble Land

Grabbing Court categorically found that Dontaraju Venkata Appa

Rao is the absolute owner of the property and the rival claim set up by the defendants’ vendor is not valid. It was also found that the vendor of the defendants namely Yasani Lakshmi @ Boda

Lakshmi, D/o.Boda Narayana, grandfather of Boda Koti Lingam has no right as her predecessor in title have already sold away the property in the year 1930 in favour of one Kakamanu Peda

Peri Reddy, S/o.Rami Reddy.

07.Then the defendants’ vendor namely Yasani Lakshmi has filed a Writ Petition No.21393 of 1994 against the decree and judgment passed by the Land Grabbing Tribunal dated 18.07.1994 before Hon’ble High Court of A.P., it was dismissed, considering the aspects and confirmed the decree and judgment passed by the Land Grabbing Tribunal in LGC No.76 of 1990. As such, the decree and judgment and the findings thereon became final and binding on all the parties including the defendants’ vendor and the defendants who are parties to the same. During 5O.S.372/2014 the pendency of the proceedings the said Yasani Lakshmi in collusion with defendants 1 and 2 created and brought into existence of the nominal and collusive registered sale deeds

dated 20.03.1989 vide document No.1173 of 1989 in favour of

the first defendant and another document bearing No.1174 of 1989 in favour of second defendant in respect of the property which is subject matter of the decision passed by the Hon’ble

Land Grabbing Tribunal.

08.Basing on the collusive, sham and nominal documents and also suppressing the decree and judgment passed in Land

Grabbing Case No.76 of 1990 and in Writ Petition No.21393 of 1994 being the parties to the proceedings, defendants 1 and 2 got filed OS No.222 of 2006 on the file of Prl. Senior Civil Judge’s

Court, Narasaraopet against Shaik Meera Vali, Bolla Brahma

Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet obtained a fraudulent and illegal exparte decree. Infact, the defendants 1 and 2 filed IA No.813 of 2006 in OS No.222 of 2006 seeking temporary injunction restraining the above named persons from alienating the property and the said application was dismissed on 29.12.2006. As such, there is no prohibition or prohibitory order from any Court of law either for alienation or sale of the property by Shaik Meera Vali and two others, but, unfortunately, the suit was decreed exparte and defendants filed

E.P.92/2011 and obtained exparte order against the above said

persons. In fact, by then the plaintif has been in exclusive possession and enjoyment of the property. The decree passed in 6O.S.372/2014

OS No.222 of 2006 and the further proceedings in EP No.92 of

2011 do not bind or efect the rights of the plaintif or his vendors, as the proceedings are collusive in nature and they are all illegal transactions. The decree and judgment delivered by the Court is not competent to deliver them as they were obtained by fraud, suppressing the decree and judgment passed in Land Grabbing Tribunal case No.76 of 1990 and the orders passed by the Hon’ble High Court of A.P., in Writ Petition

No.21393 of 1994.

09.Having right, title and possession over the extent of

Ac.5:47 cents of the property, after the death of Dontharaju

Krishna Murthy, his sons namely Venkata Appa rao, Mallikarjuna

Rao, Venkateswara Rao, Gopala Krisha Murthy, Murali Mohan and

Vidya, W/o.Late Dontaraju Seetha Rama Rao sold away suit property to Shaik Meera Vali, Bolla Brahma Naidu and Shaik

Showkath Ali of Prakash Nagar, Narasaraopet under a registered sale deed dated 06.05.2002 and delivered possession of the property to them. Later all the three persons have converted the same into house plots by fixing boundaries and sold the plots therein to several individuals including the plaintif by executing separate sale deeds and delivered possession to the vendors respectively including the plaintif. Since the date of purchase the plaintif, being an absolute owner of the schedule property has been in exclusive possession and enjoyment of the plaint schedule property with absolute rights to the knowledge of one and all. Inspite of the same, the defendants have been making 7O.S.372/2014 false claims and threatening the plaintif with dire consequences and tried to dispossess him from the plaint schedule property and created a cloud over the right, title and interest of the plaintif in the suit schedule property. Hence, the suit.

10.During the pendency of the suit, first defendant died intestate on 29.06.2018, leaving behind him, his legal heirs, defendants 3 to 7 who are in possession and enjoyment of the estate of the deceased first defendant. Hence, they are proper and necessary parties to the suit for just decision of the case.

The brief averments of the written statement filed by the defendants 1 and 2 adopted by the defendants 3 to 7 in their memo dated 01.02.2021 are as follows:

11.They refuted all the allegations in the plaint and contended that originally one Boda Koti Lingam, paternal grandfather of defendants’ vendors owned Ac.10:94 cents including the plaint schedule property at Narasaraopet and enjoyed the same during his life time. He died intestate long back leaving behind his granddaughter namely Yasani Lakshmi @

Boda Lakshmi. Ever since, she enjoyed the properties with absolute eights as only legal heir of deceased Koti Lingam. She sold away plot Nos.11 and 12 in an extent of 390 square yards and item No.34 in an extent of 195 square yards in total an extent of 585 square yards of vacant site to the first defendant under a registered sale deed bearing document No.1173 of 1989

dated 20.03.1989 for a valid and adequate consideration of

8O.S.372/2014

Rs.23,400/-. She also sold away plot No.33 in an extent of 195 square yards of vacant side which includes the suit schedule property to the second defendant under a registered sale deed bearing document No.1174 of 1989 dated 20.03.1989 for a valid and adequate consideration of Rs.7,800/-. Infact the defendants are bonafide purchasers for valuable consideration. Ever since from the date of purchase they have been in peaceful possession and enjoyment of their respective properties. In fact, number of persons had purchased the house sites in and around the properties of the defendants by that time. Dontaraju Krishna

Murthy filed OS No.181 of 1985 on the file of District Munsif

Magistrate’s Court at Narasaraopet against the vendors of the

defendants for permanent injunction and the said suit was dismissed against which there were no proceedings of any kind.

Therefore no cases of any kind were pending against the said property in the year 1989.

12.One Dontaraju Venkata Appa Rao filed Land Grabbing case No.76 of 1990 against not only the vendor of the defendants, but also most of her vendees in respect of Ac.5:47 cents which includes the suit schedule property as if his ancestor purchased the same from one Kakumanu Peda Peri Reddy who alleged to have been purchased the same from the legal heirs of

Boda Koti Lingam namely Manchamma and her daughter. The defendants who were employees used to stay at their working places unable to pay their attention either on the said case or also with regard to their properties including the suit schedule 9O.S.372/2014 property. In the year 2006 when they went to the suit schedule property, the vendors of the plaintif by name Shaik Meera Vali,

Bolla Brahma Naidu and Showkath Ali obstructed them to enter into their plots alleging that they have purchased the said properties including the plaint schedule property for which they got filed OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s

Court, Narasaraopet against the vendors of the plaintif and another, seeking for declaration and for recovery of possession.

In the said suit the vendors of the plaintifs filed their written statement with a contention what all alleged in the plaint herein was mentioned therein. The said decree became final as there were no proceedings against the said decree and it binds all including the plaintif who is said to be their vendee. In pursuance of the decree, the vendors of the plaintif did not entrust the possession of the plaint schedule property and another property and on that the defendants herein filed EP

No.92 of 2011 and got possession of the property on 30.05.2011 through Court as per law.

13.The contention of the defendants in further shows that Land Grabbing Case No.76 of 1990 was allowed in favour of

Dontaraju Venkata Appa Rao who alone filed without adding the other legal heirs of Dontaraju Krishna Murthy, without giving an opportunity to the defendants vendors, to prove their title and possession, though it was agitated before Hon’ble High Court by way of Writ Petition, the same was unfortunately dismissed.

Even assuming without admitting that the defendants and their 10O.S.372/2014 vendors are land grabbers, the said Dontaraju Venkata Appa Rao did not take any steps in getting possession of the said property as such the alleged possession of Venkata Appa Rao is false. The person Venkata Appa Rao filed criminal complaint as per Land

Grabbing Case against the vendors of the defendants and her husband in CC N o.03 of 1998 on the file of Prl. Junior Civil

Judge’s Court at Guntur for punishment as Land Grabbers. The

said criminal case was acquitted on 31.01.2005 with a finding that they are not land grabbers as such they are not liable for conviction under land Grabbing Case against which there were no proceedings. Therefore, no sufficient documents were placed in the said case in time due to which it was allowed but not with any other reasons. Therefore, the said Land Grabbing Court decree does not bind the defendants in any manner.

14.The contention of the defendants lastly shows that the vendors of the plaintif got issued a legal notice through one

Gokanakonda Mandaiah, S/o.Jagannadham of Petlurivaripalem village on 07.04.2014 claiming the properties of defendants as if it was purchased by him from the vendors of the plaintifs on 29.06.2006, for which a reply was sent due to which he kept quiet. Thereon the vendors of the defendants got filed the present suit with the plaintif with a view to harass them. The plaintif is not a bonafied purchaser, he colluded with his vendors and knowing fully well about the proceedings in between the defendants and his vendors, he got filed the suit, it is liable to be dismissed. There are no bonafides to file the suit and there is no 11O.S.372/2014 cause of action and the alleged cause of action is a created one.

The framing of suit is quite incorrect. The plaintif approached the Court with utmost unclean hands by paving with all false allegations for the purpose of litigation as such they are not entitled to any discretionary relief of declaration and injunction.

Hence, the suit is liable to be dismissed with costs.

15.Inadvertently issues were settled at twice. Initially on 23.01.2016 my predecessor in office framed the following issues:

01.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet dated 20.08.2010 binds on the plaintif ?

02.Whether the plaintif is in possession of the schedule property as prayed for?

03.Whether the plaintif is entitled declaration as prayed for?

04.Whether the plaintif is entitled for the relief of permanent injunction as prayed for?

05.To what relief?

16.Again on 26.02.2021 the following issues are settled:

01.Whether the plaintif is absolute owner of plaint schedule property?

02.Whether the plaintif is in possession and enjoyment of plaint schedule property as on the date of filing of the suit?

12O.S.372/2014

03.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet is binding on the plaintif?

04.Whether the plaintif is entitled for declaration as prayed for?

05.Whether the plaintif is entitled for permanent injunction as prayed for?

06.To what relief?

17.Hence the issues settled as referred above are recasted as follows:

01.Whether the plaintif is absolute owner of plaint schedule property?

02.Whether the plaintif is in possession and enjoyment of plaint schedule property as on the date of filing of the suit?

03.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet dated 20.08.2010 binds on the plaintif ?

04.Whether the plaintif is entitled for declaration as prayed for?

05.Whether the plaintif is entitled for permanent injunction as prayed for?

06.To what relief?

13O.S.372/2014

18.On behalf of the plaintif, P.Ws.1 to 7 are examined.

Exs.A1 to A21 are marked. P.W.1 is the plaintif-Kunkalagunta

Samba Siva Rao, P.W.2 is Vanga Malla Reddy, P.W.3 is Tubati Appa

Rao, P.W.4 is Nelluri Brahmaiah, P.W.5 is Nelaturi Suvarnaraju,

P.W.6 is Pagadala Subrahmanyam and P.W.7 is Gokanakonda

Mandaiah. Ex.A1 is the certified copy of power of attorney dated 25.11.2006 executed in favour of Sayani Ananda Babu by Shaik

Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of

Prakash Nagar, Narasaraopet in respect of the schedule property,

Ex.A2 is the certified coppy of the registered sale deed dated 06.05.2002 vide document No.5968 of 2006 executed by the sons of Dontaraju Krishna Murthy in favour of the Shaik Meera

Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash

Nagar, Narasaraopet, Ex.A3 is the certified copy of sale deed

dated 29.06.1907 vide document No.1561 of 1907 executed by

Kolalapudi Pitchamma, W/o.Sadasivudu, for an extent of Ac.5:47 cents in favour of Kakumanu Peda Peri Reddy, Ex.A4: C.C of the registered sale deed dated 09.02.1930 vide document No.313 of 1930 for Ac.5:47 cents executed by Boda Manchemma, W/o.Koti

Lingam and Swarna Durgamba, W/o.Veera Raghava Chari,

D/o.Manchemma in favour of Kakumanu Peda Peri Reddy, Ex.A5 is the certified copy of the sale deed dated 09.06.1940 vide document No.1668 of 1940 executed by Kakumanu Peda Peri

Reddy in favour of Dontaraju Krishna Murthy adopted son of

Mallikarjuna Rao for Ac.2.47 cents out of Ac.5:47 cents, Ex.A6 is the certified copy of the sale deed dated 09.06.1940 vide 14O.S.372/2014 document No.1669 of 1940 executed by Kakumanu Peda Peri

Reddy in favour of Dontaraju Veeramma, W/o.Mallikarjuna Rao for Ac.3:00 cents out of Ac.5:47 cents, Ex.A7 is the copy of the decree and judgment passed in Land Grabbing Case No.76 of 1990 dated 18.07.1994 by the Hon’ble Land Grabbing Tribunal,

Ex.A8 is the copy of the order passed in Writ Petition No.21393 of 1994 dated 16.09.1998 by the Hon’ble High Court of A.P., Ex.A9 is the copy of the plaint, written statement, order in I.A.813/2006 in O.S.222/2006 and decree and judgment in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet,

Ex.A10 is the copy of the E.P. No.92 of 2011 in OS No.222 of 2006. Ex.A11 is the certified copy of the registered sale deed

dated 20.03.1989 vide document No.1173 of 1989 standing in

the name of the first defendant namely M. Raja Rao, S/o.Ananda

Rao executed by Yasani Lakshmi, W/o.Narsimhulu, D/o.Boda

Narayana Granddaughter of Boda Koti Lingam, Ex.A12 is the certified copy of the registered sale deed dated 20.03.1989 vide document No.1174 of 1989 standing in the name of the second defendant namely Dasari Lara Grace Sarojini, D/o.Vandanam executed by Yasani Lakshmi, W/o.Narasimhulu, D/o.Boda

Narayana granddaughter of Boda Koti Lingam, Ex.A13 is the original registered sale deed dated 25.11.2006 vide document

No.13739 of 2006 executed by Shaik Meera Vali, Bolla Brahma

Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in favour of the plaintif in respect of item No.1 of the schedule mentioned property, Ex.A14 is the original registered sale deed 15O.S.372/2014

dated 16.01.2007 vide document No.481 of 2007 executed by

Sayini Ananda Babu being the GPA of Shaik Meera Vali, Bolla

Brahma Naidu and Shaik Showkath Ali of Prakash Nagar,

Narasaraopet in favour of the plaintif in respect of Plot No.20 and part of Plot No.19 covered in item No.2 of the schedule mentioned property, Ex.A15 is the signature of petitioner Returu

Prabhakar Rao in PLC No.13 of 2013 before the Lok Adalath at

M.L.S.C., Narasaraopet (marked in the cross examination of

D.W.2). Ex.A16 is the certified copy of the registered sale deed

dated 15.04.2008 executed by K. Srinivasa Reddy in favour of

Vanga Malla Reddy, Ex.A17 is the certified copy of the registered gift deed dated 19.04.2008 executed by Tubati Appa Raoi in favour of K. Hemantha Nagaraju, Ex.A18 is the certified copy of the registered sale deed dated 29.06.2006 executed by

Sk.Meera Vali in favour of Nelluri Ratnaiah, Ex.A19 is the certified copy of the registered sale deed dated 29.06.2006 executed by

Sk. Meera Vali and others in favour of Nelaturi Suvarna Raju,

Ex.A20 is the certified copy of the registered sale deed dated 16.12.2013 executed by Sk. Meera Vali and others in favour of

V. Sri Latha and Ex.A21 is the certified copy of registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Gokanakonda Mandaiah.

19.On behalf of the defendants, D.Ws.1 to 4 are examined and Exs.B1 to B6 are marked. D.W.1 is the first defendant-Molatrati Raja Rao, D.W.2 is Returu Prabhakara Rao,

D.W.3 is Balijepalli Abraham and D.W.4 is Alladi Subhushana Rao.

16O.S.372/2014

Ex.B1 is the Xerox copy of registration extract of the regd., sale deed dated 20.03.1989 vide document No.1173 of 1989 executed by Yasani Lakshmi @ Boda Lakshmi in favour of the first defendant, Ex.B2 is the registration extract of the regd., sale deed dated 20.03.1989 vide document No.1174 of 1989 executed by Yasani Lakmi @ Boda Lakshmi in favour of the 2nd defendant, Ex.B3 is the Xerox copy of the certified copy of the decree and judgment dated 20.08.2010 passed in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court,

Narasaraopet, Ex.B4 is the copy of the E.P. No.92 of 2011 in OS

No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court,

Narasaraopet, Ex.B5 is the copy of the certified copy of the property delivery receipt dated 30.05.2011 in E.P. No.92 of 2011 in OS No.222 of 2006 and Ex.B6 is the copy of the certified copy of the judgment dated 31.01.2005 passed in CC. No.01 of 1998 on the file of the Prl. Junior Civil Judge’s Court, Guntur.

20.Heard counsel for the plaintif and defendants physically and virtually through blue jeans. The counsel for plaintif also filed his written arguments.

21.Before adverting to the arguments submitted by the respective sides, it is relevant to refer the other suit in

O.S.370/2014 got filed by the plaintif (Godugu Anjaneyulu)

against the same defendants herein for the relief of declaration and permanent injunction in respect of the plaint schedule i.e., 17O.S.372/2014 northern part of plot No.19 in T.S.No.1579/1. The present suit on hand got filed by the plaintif (Kunkalagunta Sambasivarao) against the defendants in O.S.370/2014 sought for the reliefs declaration and permanent injunction in respect of his property i.e., schedule property is south of plot No.19, plot Nos.20 and 21.

In both suits, the witnesses, documents as well as their arguments are common.

22.The submission of counsel for the plaintif in his written arguments as well as in oral submission concentrated on several aspects. The initial contention is that the judgment in

L.G.C.No.76/1990 is a material document where the right and title of the plaintif’s vendor’s vendor has finalized and it invariably entitle the plaintif to prove his right and title over the plaint schedule property. The other contention is that the schedule in O.S.222/2006 and the present plaint schedule are diferent and there is no identity of the defendants’ property and the evidence of P.Ws.1 to 7 categorically shows that the plaint schedule property is diferent from the property of defendants.

His argument also concentrated on the factum of possession.

According to the plaintif, the property is a vacant site and as per the findings in the judgment in L.G.C.No.76/1990, some of the respondents raised some huts in the portion of the property and in fact the defendants’ vendor was never in possession of the property, but tried to encroach into the property by removing the fence which was also noticed in the findings of the said judgment. The written arguments of the plaintif at one point of 18O.S.372/2014 time concentrated on the filing of the suit in O.S.222/2006 by the defendants for declaration and recovery of possession is a clear proof that the plaintif in the said suit have no title and possession over the property and the plaintif in this suit and his vendors are in possession and enjoyment of the said property.

The application in I.A.813/2006 was dismissed on merits on 29-12-2006 with a categorical finding that the defendants herein and their vendors have no right, title and possession over the property and that the vendors of the plaintif are the absolute owners of the property having right, title and possession and even can enjoy the property as of right, is itself clear to prove the right, title and possession of the plaintif over the plaint schedule property. The written arguments also concentrated on the fundamental principles of law that “possession follows title” since the schedule property is a vacant land and the title of the property was already decided in favour of the plaintif’s vendor’s vendor in L.G.C.No.76/1990. Per contra, counsel for the defendants in his submission stated that the defendants purchased the property in the year 1989 by that time there was no pending litigation over the said property. Apart from the defendants, there were other third party purchasers purchased the plots in the year 1986 i.e., after the dismissal of the suit in

O.S.181/1985 got filed by Dontaraju Krishna Murthy against the

vendor of the defendants. His argument very much concentrated about the possession of the plaintif and his vendors in between 1942 to 2002. When the L.G.C. court in 19O.S.372/2014

O.S.76/1990 had given a finding that Dontaraju Venkata Apparao

and others (sons of Venata Krishna Murthy/plaintif’s vendors’ vendor) were not in possession of the schedule property and a direction was given to the respondents therein to handover the possession of the property within two months or otherwise the

R.D.O., has to initiate proceedings how made the plaintif to canvas before this court that he has been in possession and enjoyment of the plaint schedule property by virtue of his sale deeds in the year 2006 and 2007 and before that his vendors in the year 2002 without any proceedings either from the R.D.O., or any evidence in order to show the delivery of property by the respondents in L.G.C.No.76/1990 to the vendors of plaintif.

Counsel for defendants also submitted that they are not admitting the title of vendor of plaintif’s vendor as observed in

L.G.C.No.76/1990 in view of non-submission of material documents by the respondents on their behalf. Not only that, he also pointed out the discrepancy with regard to the S.No.1579 which is not the survey number in the title of Boda Kotilingam.

Counsel for the defendants concluded his arguments that when the defendants obtained possession in O.S.222/2006 through court proceedings, they are deemed proceedings unless they are proved as paper proceedings, but the plaintif did not take any steps in order to prove the said proceedings as paper proceedings. Since the plaintif has not in possession of the plaint schedule property even through his vendors unless the defendants are evicted under due process of law, he is not 20O.S.372/2014 entitled for the relief of declaration and recovery of possession.

Counsel for the defendants also pointed out the maintainability of the suit, when hit by the principles of resjudicata as the title to the property was already decided in O.S.222/2006 and there are no pending proceedings on behalf of the plaintif herein to set aside the decree and judgment of the said suit.

Issue No.1:

23.The case of the plaintif basing on the evidence of

P.Ws.1 to 7 coupled with Exs.A1 to A21 is that he is absolute owner of the plaint schedule property i.e., two items in an extent of 197.70 sq.yds., in plot No.21 and 292.40 sq.yds., in plot No.20 and part of plot No.19 on southern side situated in T.S.No.1579/1 and assessment No.602 as shown in the plaint schedule purchased from his vendors under two diferent registered sale deeds dt.25-11-2006 and 16-1-2007 executed by Shaik

Meeravali and two others and Sayani Ananda Babu being the

G.P.A of Shaik Meera Vali and two others respectively on payment of valid sale consideration and since then he has been in possession and enjoyment of the said property. The contention of the plaintif is that the plaint schedule property is part of a total extent of Ac.10.94 cents originally belonged to one

Kolalapudi Pitchamma who sold the property to Boda Kotilingam and his wife Manchamma in the year 1907 and after the death of

Kotilingam, his legal heirs sold away the said property i.e.,

Ac.5.47 cents on the north, to one Kakumanu Peda Papireddy and Ac.5.47 cents on the south to one A.Veeraiah on two 21O.S.372/2014 diferent sale deeds dt.9-2-1930, delivered possession of the property to the said vendees. Kakumanuy Peda Papireddy in turn sold the said property under two registered sale deeds to

Dontaraju Krishna Murthy and his adopted mother Dontaraju

Veeramma and delivered possession of the said property. As the matter stood thus, the granddaughter of Boda Kotilingam by name Yasani Lakshmi when tried to encroach and grab the extent of Ac.5.47 cents, Dontaraju Venkata Apparao, s/o late

Krishna Murthy filed a petition before Land Grabbing Tribunal in

L.G.C.No.76/1990 against the defendants herein (respondents 26, 27 therein) and some others obtained a judgment with a declaration that Dontaraju Venkata Apparao and his family members are absolute owners of the schedule property therein and thereafter the petitioner in L.G.C.No.76/1990 and other legal heirs of Krishna Murthy sold away the property to his vendors

Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali under a registered sale deed dt.6-5-2002 and delivered possession to them who converted the said property into house plots, wherein the plaintif purchased the plaint schedule property under the registered sale deeds dt.25-11-2006 for Item

No.1 and dt.16-1-2007 for Item No.2. Here the contention of the plaintif in further shows that the defendants herein by playing fraud and misrepresentation, obtained an exparte decree in

O.S.222/2006 filed against the plaintif’s vendors on the file of

Principal Junior Civil Judge Court, Narasaraopet for declaration

22O.S.372/2014 and recovery of possession which is a nullity, non-est in the eye of law and absolutely not binding on the plaintif.

24.Per contra, the contention of the defendants basing on the evidence of D.Ws.1 to 4 coupled with Exs.B1 to B6 is that originally one Boda Kotilingam, the paternal grandfather of defendants’ vendor owned Ac.10.94 cents and enjoyed the same till his last breathe. He died intestate leaving behind the defendants’ vendor Yasani Lakshmi as sole legal heir. Ever since she enjoyed the property with absolute rights. The said Lakshmi sold away plot Nos.11 and 12 in an extent of 390 sq.yds., and

Item No.34 in an extent of 195 sq.yds., and in total 585 sq.yds., of vacant site to the 1st defendant under a registered sale deed dt.20-3-1989 for a valid and adequate consideration and also sold another plot No.33 in an extent of 195 sq.yds., of vacant site which includes the present plaint schedule property to the 2nd defendant under a registered sale deed dt.20-3-1989 for a valid and adequate consideration. The defendants are bonafide purchasers for valid consideration. Ever since from the date of their purchase, they have been in possession and enjoyment of their respective properties. Number of persons have also purchased the house sites in and around the property of defendants by that time. The defendants who are employees used to stay at their working places unable to pay attention on the case in L.G.C.No.76/1990 or with regard to the properties included in the said schedule property. In the year 2006 when they went to their schedule properties, the vendors of the 23O.S.372/2014 plaintif obstructed them to enter into their plots alleging that they have purchased the said property and due to their high handed activities the defendants were disposed from their properties including the plaint schedule property and having no other go, they got filed O.S.222/2006 on the file of Principal

Junior Civil Judge, Narasaraopet against the vendors of the plaintif and another for declaration and for recovery of possession which was decreed in their favour on 20-8-2010. In pursuance of the said decree when the vendors of the plaintif did not entrust the possession of the suit schedule property and another property, they got filed E.P.92/2011 and got possession of the suit property and another property on 30-5-2011 through court as per law. Hence, the suit is liable to be dismissed.

25.Since the plaintif got filed the main suit contending that he is absolute owner of the plaint schedule property by virtue of his title deeds dt.25-11-2006 and dt.16-1-2007 and since then he has been in possession and enjoyment of said property the burden is on the plaintif in order to prove not only his right and title over the plaint schedule property but also the right and title of his vendors in order to canvas himself as absolute owner of the property. The settled ratio with regard to the burden in a suit for declaration which is only on the plaintif and he cannot take advantage in the weakness of the defendants’ case and the ratio that has been laid down by their lordships in a catena of citations which are reproduced hereunder.

24O.S.372/2014

The observation by their lordships of Hon’ble Apex

Court reported in AIR 2014 SUPREME COURT 937 Union of

India and others vs. Vasavi Co-operative Housing Society

Ltd., and others wherein their lordships of Hon’ble Apex court in their observation held that :

(i)“It is trite law that, in a suit for declaration of title, burden always lies on the plaintif to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintif.”

(ii)Their lordships also referred the observation reported in

AIR 1959 SC 31 Maran Mar Basselios Cathelics vs. Thukalan

Paulo Avira.

The similar observation that “in a suit for declaration if the plaintifs are to succeed, they must do so on the strength of their own title.”

(iii)In another citation referred in the same decision reported in AIR 1995 SC 1377 Naragapalika, Jind vs. Jagath

Singh it was held that:

“the onus to prove title to the party in a question was on the plaintif.”

(iv)In another citation reported in 1977 (1) ALT 532

Kanchi Subbamma vs.Manepalli Penchalayya wherein the observation by their lordship that:

“plaintif cannot get declaration of his title merely because defendant has failed to prove his title. Burden or proving title which the plaintif claims lies on him and if he fails to discharge that burden his suit must fail irrespective of whether the defendant has proved his title to the land in question or not.” 25O.S.372/2014

26.In another citation reported in 1999 (2) ALD 590

A.Ramloo vs. G.Sriramachandra Murthy wherein the similar observation by their lordships of Hon’ble High Court of Andhra

Pradesh that the plaintifs must prove their title and must establish identity of the property by reiterating the diecision reported in Kanchi Subbamma and others. The other citation reported in 2018 (5) ALT 511 in between Uppara Anjinappa (died) and others vs. T.Khasim Sab (died) per LR and others wherein the observation by their lordships of Hon’ble High Court reiterated the observation of the Hon’ble Apex Court reported in

Union of India vs. Vasavi Cooperative Housing Society

Limited.

27.As per the ratio laid down by their lordships in the above case law when applied to the present case on hand, in this case also the burden is only on the plaintif who approached this court for the relief of declaration and he ought to have established not only his right and title over the disputed schedule property but also his vendors in order to get the relief in his favour. In this context, it is relevant to refer the written arguments submitted by the counsel for the plaintif. Contrary to the settled ratio, the counsel for the plaintif in his written arguments at page No.6 in paragraph No.5 contended that “this being a suit for declaration and both parties have adduced oral and documentary evidence and at this stage the question of burden of proof does not arise and the Hon’ble court has to consider the pleadings, the issues, the documents and the oral 26O.S.372/2014 evidence placed before this court.” The reasons best known to the counsel his arguments went on stating as referred above in order to relieve the plaintif from his burden in a suit for declaration. But, on the other hand, the counsel for the defendants opposed to consider the said contention and contended that the burden is only on the plaintif and he ought to have discharge his burden by placing positive evidence to get the relief in his favour. In this context, he has also relied on the citations reported in 2009 (5) SCC 318 in between

T.K.Mohammad Abubucker(d) LRs., and others vs. P.S.M

Ahamed Abdul Khader and others wherein the observation by their lordships of Hon’ble Apex Court that “a plaintif in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in title or possession of defendants.”

In another citation reported in 1999 (2) ALT 624 between

A.Ramloo and others vs. G.Sreeramachandra Murthy and others wherein the observation by their lordships of Hon’ble

High Court of A.P., that “when the plaintifs filed the suit for recovery of possession on the strength of title, the plaintifs will stand or fall depending upon the evidence available on record. The plaintifs must prove their case. The plaintifs will not be entitled to get declaration of title if they failed in establishing their title in respect of the suit land.” In another citation reported in 1999 (3) ALT 210 between A.Venkata Subbareddy vs. Bairagi Ramaiah (died) and his L.Rs., wherein the observation by their lordships of

Hon’ble High Court of A.P., that

27O.S.372/2014 “the plaintif in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere distinction of the defendant’s title in the absence of establishment of his own title carries the plaintif nowhere.”

28.The observation by their lordships is aptly applicable to the presence case on hand, where the plaintif approached this court for the relief of declaration of his title over the plaint schedule property. Though the written arguments filed by the counsel for the plaintif contending that the proposition of law referred in the above case law does not apply to the present case on hand, no much weight could be given to such a contention.

29.Let us, examine the evidence of plaintif coupled with his documents, whether proves any of his contention in order to declare him as absolute owner of the plaint schedule property.

The plaintif in order to discharge his burden besides examining himself as P.W.1 also adduced the evidence of P.Ws.2 to 7 who are none other than the neighbouring plot owners to the plaint schedule property in order to prove the factum that there are other third party purchasers for their respective plots from the vendors of the plaintif herein.

30.Before adverting to the evidence of plaintif’s side, let us see the admitted facts in the present suit. They are that the vendor of defendants by name Yasani Lakshmi @ Boda Lakshmi 28O.S.372/2014 is granddaughter of Boda Kotilingam. It is another admitted fact that one Dontaraju Venkata Apparao, s/o Dontaraju Venkata

Krishna Murthy filed L.G.C.No.76/1990 on the file of Land

Grabbing Tribunal, Hyderabad by showing 29 respondents as land grabbers, sought the relief of declaration and for their eviction. In the said L.G.C.No.76/1990, the defendants 1 and 2 herein referred as respondents 26 and 27 therein, similarly the vendor of the defendants Yasani Lakshmi referred as 2nd respondent in L.G.C.No.76/1990. It is another admitted fact that the said L.G.C.No.76/1990 was allowed on 18-7-1994 declaring the respondents 2, 26 and 27(Defendants 1 and 2 herein and their vendor) along with some other respondents as land grabbers and directed them to deliver vacant possession of the schedule property within two months from the date of order, failing which, the R.D.O., Narasaraopet shall deliver vacant possession of the schedule property to the applicant(Dontaraju

Venkata Apparao). It is another admitted fact that aggrieved by the said decree and judgment in L.G.C.No.76/1990, Yasani

Lakshmi and her husband Yasani Narasimhulu(vendor of defendants) filed writ petition No.21393/1994 on the file of

Hon’ble High Court of A.P., seeking writ of certiorari calling for the

records in the L.G.C.No.76/1990 and to quash the same by holding the impugned judgment as illegal. However the said writ petition was dismissed on 16-9-1998. It is another admitted fact that the defendants herein as plaintifs got filed O.S.222/2006 on the file of Principal Junior Civil Judge, Narasaraopet against the 29O.S.372/2014 vendors of the plaintif herein i.e., Shaik Meera Vali, Bolla Brahma

Naidu and Shaik Showkath Ali and Yasani Lakshmi(vendor of the defendants herein), sought for the relief of declaration and recovery of possession for their property got purchased from

Yasani Lakshmi under the registered sale deeds of the year 1989.

The said suit was decreed exparte on 20-8-2010. In pursuance of the said decree and judgment in O.S.222/2006, the defendants herein who are the plaintifs therein got filed E.P.92/2011 under

Order 21 Rule 35 of CPC for delivery of the schedule property in

O.S.222/2006.

31.Now, let us see the evidence of plaintif herein as

P.W.1. The chief affidavit of P.W.1 is nothing but reiteration of the contents of the plaint. Through this witness, 14 documents were got exhibited initially in his first spell of his chief examination.

Out of them, Ex.A13 is the sale deed of the plaintif dt.25-11-2006 executed by Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali. It is the original sale deed of the plaintif wherein the schedule referred as property in an extent of 197.70 sq.yds., situated in T.S.No.1579/1 at the nearest door

No.13-2-137/14 bearing Plot No.21. In this document, the title of the plaintif’s vendor referred as the registered sale deed dt.6-5-2002 when executed by Dontaraju Venkata Apparao and others in their favour. Ex.A2 is the link document of Ex.A13. The other title deed of the plaintif is Ex.A14. It is another registered sale deed executed by Sayani Anand Babu being the G.P.A.holder of Shaik Meera Vali and two others dt.16-1-2007 in favour of the 30O.S.372/2014 plaintif for the property in an extent of 292.40 sq.yds., situated in T.S.No.1579/1, Block No.2-27 at the nearest door No.13-2- 137/14 bearing plot No.20 and southern part of plot No.19. In this document, the title of the plaintif’s vendor referred as the registered sale deed dt.6-5-2002 executed by Dontaraju Venkata

Apparao and others in their favour and they in turn executed an agreement of sale coupled with G.P.A., dt.25-11-2006 in favour of

Sayani Anand Babu. Ex.A1 is the link document of Ex.A14. It is nothing but the certified copy of G.P.A dt.25-11-2006 executed by Shaik Meera Vali and two others in favour of Sayani Anand

Babu. As could be seen from the documents under Exs.A13 and

A14, the link document that was referred to in the said document is nothing but the registered sale deed dt.6-5-2002 executed by

Dontaraju Venkata Apparao and others in favour of Shaik Meera

Vali and two others. However, the vendors of plaintif they inturn executed an agreement of sale coupled with G.P.A., in favour of

Sayani Anand Babu on 25-11-2006 for part of the property covered under Ex.A2 i.e., for the plot Nos.19, 20, 28 and 29 which is an extent of 998 sq.yds., in T.S.No.1579/1 of

Narasaraopet municipality. On perusal of the contents of the said document reveals that the executants though executed the said document by giving power of attorney to their agent Sayani

Anand Babu, possession of the property was not given. It is an unpossessory agreement of sale coupled with G.P.A. Here, it is also pertinent to refer the schedule under Ex.A14 which is for plot Nos.20 and part of plot No.19’s southern part. However, 31O.S.372/2014 there are no specific boundaries to the specific plots in the schedule under Ex.A14 and the total extent referred as 292.40 sq.yds. It is nothing but Item No.2 of the present plaint schedule.

So, as could be seen from the document under Ex.A13 and

Ex.A14, it is very much vivid that Exs.A1 and A2 are the link documents referred in the title deeds of the plaintif.

32.Now, let us examine the schedule of Ex.A1 which is a link document referred in Ex.A14. In this document, the executants referred their title to their property acquired by them under a registered sale deed dt.6-5-2002 for an extent of Ac.5.38 cents executed by Dontaraju Venkata Apparao and others. The property covered under Ex.A1 is for the plots 19, 20, 28 and 29.

As could be seen from the schedule under Ex.A1, it is vivid that the plaintif for his property covered under Ex.A14 i.e., plot No.20 and southern part of plot No.19 purchased the said property from his vendors through their G.P.A holder Sayani Anand Babu.

However the boundaries pertaining to the property covered under Ex.A14 has not reflected specifically with regard to the specific extent covered under those plots. Similarly, there is no mention either in Ex.A14 or in Ex.A1 about the fact of any layout laid by the vendors of plaintif by the date the said documents were executed.

33.Now, let us see the document under Ex.A2 which is a certified copy of registered sale deed dt.6-5-2002 vide

Doc.No.5968/06 executed by Dontaraju Venkata Apparao and 32O.S.372/2014 others in favour of Shaik Meera Vali and two others and it is nothing but the link document of Ex.A13. The schedule covered under the said document is for an extent of Ac.5.38 cents covered by T.S.No.1579/1 and S.No.227 of Narasaraopet municipality wherein the vendors referred their title to the said property covered under the document dt.9-6-1940 when their paternal grandmother and father purchased the property under two registered sale deeds from Peda Peri Reddy vide

Docs.No.1668/40 and 1669/40 for the property which was mistakenly referred as property in T.S.No.1549/1 which was rectified by way of rectification deeds dt.23-4-1984 and after the death of their father Dontaraju Krishna Murthy as intestate, they got filed L.G.C.No.76/1990 which was decreed in their favour on 18-7-1994 and it was confirmed by the Hon’ble High Court in its decree dt.16-9-1998 and the land grabbers as per the directions of the Special court vacated the schedule property and the vendors who were in possession of the property delivered the same to their vendees under Ex.A2. On perusal of this document shows that though the document was executed on 6-5-2002, its registration was pending and it was completed in the year 2006.

So, the documents that are referred under Ex.A2 as the title of the vendors are of the year 1940. They are nothing but Exs.A5 and A6. Both the documents are of the year 1940 dt.9-6-1940 executed by one Kakumanu Peda Peri Reddy in favour of

Dontaraju Krishna Murthy for an extent of Ac.2.47 cents and in favour of D.Veeramma for an extent of Ac.3.00 cents and in all 33O.S.372/2014

Ac.5.47 cents covered by T.S.No.1579/1. As per the case of the plaintif, the flow of title to their vendor’s vendor is from one

Boda Kotilingam who initially purchased the property from

Kolalapudi Pitchamma in the year 1907.

34.Ex.A3 is the certified copy of the sale deed dt.29-6- 1907 executed by Kolalapudi Pitchamma in favour of Boda

Kotilingam and his wife Manchamma and the schedule covered under the said document is Ac.10.94 cents and after the death of

Boda Kotilingam, the property covered under Ex.A3 was sold away by his wife Manchamma and daughter Swarna Durgamba under two registered sale deeds dt.9-2-1930. Here the dispute pertaining to the property covered under Ex.A4 which is the registered sale deed executed by Boda Manchamma and Swarna

Durgamba in favour of Kakumanu Peda Peri Reddy for an extent of Ac.5.47 cents towards north to the total extent of Ac.10.94 cents. The remaining Ac.5.47 cents were purchased by one

A.Veeraiah under another sale deed dt.9-2-1930 which is not relevant to the present matter in issue. So, Exs.A3 and A4 are the link documents pertaining to the property of plaintif’s vendor’s vendor’s vendor title.

35.Now, let us see the case of the plaintif, right from the beginning he pleaded that his vendor’s right and title was already decided in L.G.C.No.76/1990 dt.18-7-1994 before Hon’ble

Land Grabbing Tribunal, so, the same is binding not only on the plaintif but also on the defendants who are the respondents in 34O.S.372/2014 the said land grabbing case. In order to substantiate the said contention, the plaintif also got exhibited Ex.A7 which is the decree and judgment in L.G.C.No.76/1990 and it is a material and crucial document on behalf of the plaintif who concentrated his entire arguments on the said document by referring the various findings of the Special court on the right and title of

Dontaraju Venkata Apparao, s/o Krishna Murthy and his family basing on the documents that were produced before the Special court. Since the decree and judgment in L.G.C.No.76/1990 is a verdict before a Special court constituted under the provisions of

Land grabbing(protection)Act, 1982, the same is certainly binding on the plaintif and defendants as the same pertaining to the total extent of Ac.10.94 cents in T.S.No.1579/1 wherein the present plaint schedule is a part of the property. Admittedly as could be seen from the respective contentions coupled with the decree and judgment under Ex.A7, the Hon’ble Special court in its discussion for Issue No.1 i.e., whether the petitioner(Dontaraju Venkata Apparao) is the owner of the petition schedule property ? (Ac.10.94 cents in T.S.No.1579/1), the said issue was answered positively in favour of the petitioner therein given a finding that “the applicant and his brothers (Dontaraju Venkata Apparao and his brothers) are the owners of the schedule property and the rival claim set up by the respondentsmoreparticularly2ndrespondent(Yasani

Lakshmi/vendor of defendants 1 and 2) is not valid. So, the decision of the Special court in L.G.C.No.76/1990 dt.18-7-1994, 35O.S.372/2014 made the plaintif herein to canvas before this court that the title of Dontaraju Venkata Apparao and his brothers were already declared as absolute owners of the total extent of Ac.10.94 cents situated in T.S.No.1579/1 of Narasaraopet municipality entitled the plaintif to claim his right and title over the present plaint schedule which is a part of plot No.19, plot Nos.20 and 21 comprising 292.40 sq.yds., and 197.70 sq.yds., respectively as his exclusive property.

36.Here, the plaintif also got exhibited the order copy in writ petition No.21393/94 dt.16-9-1998 when preferred by Yasani

Lakshmi and her husband against the decree and judgment in

L.G.C.No.76/1990 which was disallowed by confirming the decree and judgment in L.G.C.No.76/1990 on the file of Hon’ble High

Court of A.P., on 16-9-1998. So, as per the contention of the plaintif when the Hon’ble High Court has confirmed the decree and judgment in L.G.C.No.76/1990 what else is required to conclude the issue about the right and title of the plaintif over the present disputed schedule which is part of the plot No.19, plot Nos.20 and 21 said to have been the plots laid by the vendors of plaintif in an approved layout affirmed by the municipality of Narasaraopet. But, the contention of the plaintif on the said aspect is absolutely not probable and sustainable.

Here, the plaintif who got filed present suit contending that he purchased the present plaint schedule property by virtue of the registered sale deeds of the years 2006 and 2007 from Shaik

Meera Vali and others and their G.P.A holder Sayani Anand Babu.

36O.S.372/2014

But, as could be seen from the decree and judgment in

L.G.C.No.76/1990, the Hon’ble Land Grabbing Tribunal declared the right and title of Dontaraju Venkata Apparao and his brothers over the entire extent of Ac.10.94 cents shown as schedule in the said L.G.C.No.76/1990 as a vacant site laid as house plots, is the absolute property of those persons. Here it is also very much relevant to refer the finding of the said L.G.C.No.76/1990 when answered the issue No.2 with regard to possession of the said schedule property of Ac.10.94 cents in T.S.No.1579/1. In

Ex.A7 at page No.30, the Hon’ble Special court in its finding in

Issue No.4, given the result as follows: “In the result, in view of our findings under Issue Nos.1 to 4 we hold that respondents 1 to 20, 23 and 25 to 27 as land grabbers and direct them to deliver vacant possession of the schedule property within two months from today, failing which, the R.D.O., Narasaraopet shall deliver vacant possession of the schedule property to the applicant.”

Here, the respondents 26 and 27 in L.G.C.No.76/1990 are none other than the defendants 1 and 2 herein. So, as per the observation by the Hon’ble Special court in L.G.C.No.76/1990, it is manifest that the possession of the property was with the defendants 1 and 2 herein as respondents 26 and 27 therein along with other respondents. In this context, it is very much relevant to refer the contention of the plaintif coupled with the argument of counsel for the plaintif. As could be seen from the documents that were exhibited by the plaintif on his behalf particularly Ex.A2 which is the registered sale deed dt.6-5-2002 37O.S.372/2014 said to have been executed by Dontaraju Venkata Apparao and others in favour of Shaik Meera Vali and two others, they referred the disposal of L.G.C.No.76/1990 as well as writ petition before

Hon’ble High Court confirming the decree and judgment in

L.G.C.No.76/1990. Added to that, the respondents (land grabbers in L.G.C.No.76/1990) delivered possession of the property to the vendors under Ex.A2. Except the said recitals, there are no other particulars in the said document with reference to the date of delivery or the mode of delivery to the vendor’s vendor of plaintif under Ex.A2 in order to confirm the delivery of possession of the property to Dontaraju Venkata

Apparao and others after the disposal of L.G.C.No.76/1990. But, quite contrary to the recitals covered under Ex.A2, the argument of the counsel for the plaintif including the written arguments went on stating that the property covered under the present plaint schedule property as well as the property covered under the schedule in O.S.370/14 are not under encroachment and the said property had been in possession and enjoyment of

Dontaraju Venkata Apparao and his brothers. So, the question of handing over the possession of property by the vendor’s vendor of plaintif does not arise. Absolutely, such an argument on behalf of the plaintif is unworthy of credence in view of the findings in Issue No.4 at page No.30 of Ex.A7 besides the recitals covered under Ex.A2.

37.The plaintif’s vendor’s vendor themselves got noted in Ex.A2 that the respondents in L.G.C.No.76/1990 handed over 38O.S.372/2014 the possession of the property to them, then how the contention of plaintif contrary to the said recitals is sustainable to believe his version. In this context, it is also relevant to refer the cross examination of plaintif at one point of time. During the cross examination, P.W.1 stated that Yasani Lakshmi and her husband delivered possession to the revenue authority, but he does not know about the proceedings of the revenue authority to that efect. His statement also shows that Yasani Lakshmi and her husband after the orders of the Hon’ble High Court delivered possession to Venkatappaiah and there were no proceedings from revenue authority. So, the variance in the evidence of P.W.1 further shows the conflict in his own evidence with regard to the factum of delivery of possession of the property by the respondents in L.G.C.No.76/1990 to the petitioner therein.

However the cross examination of P.W.1 further went on showing that the person Yasani Lakshmi and her husband and their vendees delivered possession to Venkatappaiah and it was in the year 1999. So, as per the case of the plaintif, the possession was delivered to Dontaraju Venkata Apparao in the year 1999 i.e., after the disposal of the writ petition before the Hon’ble High

Court. When the own evidence of P.W.1 in his cross examination

before this court shows that the possession was delivered to

Dontaraju Venkata Apparao in the year 1999 which is an improved fact in the evidence of plaintif contrary to his pleadings, how the contention of plaintif by way of his arguments disputing the said factum is sustainable to consider 39O.S.372/2014 the bonafides in his contention. The entire arguments of the counsel for plaintif reiterated the said fact by referring his argument that the possession of the property is well with the petitioner in L.G.C.No.76/1990 and the alleged encroachment is only with reference to part of the property covered by the total extent of Ac.10.94 cents and absolutely there is no bar with regard to the possession of the present property in dispute i.e., part of the plot No.19, plot Nos.20 and 21 covered by

T.S.No.1579/1. Absolutely the said version of plaintif has no legs to stand in view of their own pleadings and documents with the recitals which are clearly and clinchingly shows that the respondents particularly the defendants 1 and 2 herein as respondents 26 and 27 in L.G.C.No.76/1990 therein are in possession of the property as land grabbers was affirmed by the said court in L.G.C.No.76/1990, but contrary to the said findings, now the argument of the plaintif was improved as if the said property is free from any encroachment which is absolutely improbable and palpably false.

38.Now, let us see the other contention of the plaintif with reference to the passing of title to the plaintif in the year 2006-2007. Admittedly since 1907 the right and title of Boda

Kotilingam and therefrom Kakumanu Peda Peri Reddy to

Dontaraju Krishna Murthy and from him to his sons Venkata

Apparao and others for the property in T.S.No.1579/1 was declared in L.G.C.No.76/1990 before Land Grabbing Tribunal as 40O.S.372/2014 their own property. So, absolutely, there is no dispute with regard to passing of title from Boda Kotilingam to Dontaraju

Venkata Apparao and his brothers as found in the findings of the said court in L.G.C.No.76/1990. But, what about the other sale deeds that were brought into existence in between 2002 to 2007 in order to show the passing of title coupled with possession from the family of Dontaraju to the vendors of plaintif, namely, Shaik

Meera Vali and two others. In Ex.A2, the sons of Dontaraju

Krishna Murthy conveyed the entire extent of Ac.5.47 cents to

Shaik Meera Vali and two others, absolutely the passing of title under the said document is not in dispute. However the delivery of possession of the property is still in dispute so far this court has not yet discussed the other evidence placed by the plaintif in order to prove the factum of delivery of possession of the property in between the vendors and vendees covered in Ex.A2.

Coming to the document under Ex.A1 is concerned, it is a certified copy of power of attorney dt.25-11-2006 when executed by Shaik Meera Vali and two others in favour of Sayani Anand

Babu for the property in an extent of 998 sq.yds., for four plot numbers i.e., 19, 20, 27 and 28, absolutely there are no particulars with regard to any plan for approval of layout or the proceedings from the concerned in order to lay plots in the schedule covered under Ex.A2. Similarly, there are no documents on behalf of the plaintif to show that his vendors laid plots for the property covered under Ex.A2 and the proceedings for the said layout in order to confirm the identity of the present 41O.S.372/2014 schedule as part of plot No.19, plot Nos.20 and 21. In this context, it is also relevant to refer the argument of the counsel for plaintif when wants to apprise before this court that the vendors of plaintif laid plots and it is an approved layout and the proceedings were issued by Narasaraopet municipality. In order to substantiate his argument, he wants to consider the plan appended to the documents as the said approved plan, absolutely such an argument is unworthy of credence in order to prove the factum of approved layout as argued by the counsel for the plaintif. The entire pleadings and evidence of P.W.1 are completely silent with regard to the factum of laying of plots under an approved layout as argued by the counsel for the plaintif. There is no whisper either in the pleadings or evidence of P.W.1 with regard to the date of layout or date of proceedings when they got obtained permission to lay plots in the total extent of Ac.5.47 cents purchased by Shaik Meera Vali and two others from the sons of Dontaraju Krishna Murthy. Not only that they not even whispered the total number of plots that were laid in the alleged approved layout plan. But, quite contrary to the evidence of P.W.1 and the pleadings of the plaintif, a fact was newly introduced through the evidences of P.Ws.2 to 7 in their chief affidavit contending that there were 31 plots laid in the approved layout before Narasaraopet municipality. Even to prove the said factum, there is no material on behalf of the plaintif to conclude that it is an approved layout and there were proceedings before Narasaraopet municipality for the property 42O.S.372/2014 covered under Ex.A2 document. The argument from counsel for the plaintif by referring the plan appended to the documents has no authenticity and it is not an approved layout as argued by him. Since the plaintif failed to place any material before this court to prove the factum of laying of plots in the property covered under Ex.A2 as an approved layout, this court has to draw an adverse inference under the provisions of Section 114(g) of the Indian Evidence Act that it is not an approved layout as contended by the plaintif, though improved through the evidences of P.Ws.2 to 7 and that was the reason, there is no material evidence on their behalf to prove the said factum. In order to prove their contention, no steps were taken even to summon the concerned authority. If at all any such approved layout was got laid by Shaik Meera Vali and others as argued by the counsel for plaintif, they ought to have take steps to prove such contention by summoning the concerned from municipality of Narasaraopet and in absence made this court to draw an adverse inference that intentionally such steps were not taken to summon any one of the concerned from the municipality and if at all such steps were taken the same would goes against to the case of the plaintif. So, considering the material that was placed by the plaintif before this court, absolutely there is no such approval of layout as canvassed by the plaintif through

P.Ws.2 to 7.

43O.S.372/2014

39.Now, it is relevant to refer the evidences of P.Ws.2 to

7. They are none other than the purchasers of some of the plots which are said to be the adjacent plots to the property of plaintif. Their sale deeds were got marked through P.W.1 in his second spell as Exs.A16 to A21. The chief affidavits of P.Ws.2 to 5 are nothing but replica to one another. The evidence affidavit of P.W.2 was got filed contending that he is a third party to the proceedings, purchased plot No.4 in the year 2008 from one

K.Srinivasa Reddy who in turn purchased the property from Shaik

Meera Vali and others in the year 2006 under a registered sale deed. He and others constructed a compound wall for their properties and have been in possession and enjoyment of the same. The plaintif also purchased Ac.0.10 cents in plot Nos.19, 20 and 21 and raised pillars and basement and have been in possession and enjoyment of the said property. This is another area where the evidence of plaintif had improved through P.Ws.2 to 7. The chief affidavits of all the witnesses improved with one factum that the property of the plaintif exists with pillars and basement which is not the case of plaintif at any point of time either in the plaint or in the schedule of the plaint. He did not refer any such construction of basement and pillars by the plaintif after he got purchased the plaint schedule property under Ex.A13 and Ex.A14. But, quite contrary to the case of the plaintif, the evidences of P.Ws.2 to 7 were improved as if the plaintif constructed basement by raising pillars which is an improved fact without any basis. The chief affidavit of P.W.2 was 44O.S.372/2014 also introduced a new fact with reference to Kuraganti

Venkateswarlu and Returi Prabhakararao who filed P.L.C.13/2013

before Mandal Legal Service Committee, Narasaraopet against

P.W.2 and 11 others falsely claiming that they purchased the property from Boda Lakshmi and ultimately the said P.L.C was closed with a finding that they have no right and title over the said property. This witness was thoroughly cross examined by the counsel for defendants. During the cross examination, this witness stated the total number of 31 plots in the approved layout by the municipality in the year 2006. However there is no such material on behalf of the plaintif which was already concluded by this court in the above referred paragraph. The cross examination of P.W.2 at one point of time shows that he does not know his plot and its surrounding plots, what else is required to conclude that this witness is a chance witness and his evidence is absolutely not helpful to the case of the plaintif.

Similarly, the cross examination of P.W.2 at another point of time shows that he does not know the particulars of the P.L.C as referred in chief examination by whom and against whom, the same was filed and the relief sought in the said application. So, considering the cross examination of P.W.2 on the above referred material facts, absolutely this court has no hesitation to conclude that he is a chance witness and his evidence is no way helpful to the case of the plaintif either to prove the factum of laying out plots in an approved layout in the year 2006 before municipality by the vendors of the plaintif and the possession and enjoyment 45O.S.372/2014 of the plaintif herein over the present schedule property. The next witness is P.W.3 who filed his chief affidavit with the contents which are similar to that of P.W.2, except the variance in plot No.7, this witness was tendered for cross examination, stated in his evidence that the plots of the plaintif and others are in private layouts. It is another area where the case of the plaintif was completely fumbled when compared with the evidence of P.Ws.1 and 2, both the witnesses in their evidence when categorically stated that the plots are in alleged approved layout before municipality without any basis and without producing any scrap of paper when tried to canvas before this court that those plots are in approved layout when laid by the vendors of the plaintif, their own evidence through P.W.3 completely ruled out their contention. If really the said property is in approved layout and the plots were laid as canvased by

P.Ws.1 and 2, the same ought to have found in the evidence of

P.W.3. But, in the absence of any such material through P.W.3, his evidence does not show any material which is just and appropriate to consider the case of the plaintif. This witness similarly in his cross examination stated that he does not know about the P.L.C., as referred in his chief affidavit. So, absolutely the evidence of P.W.3 is similarly not material in order to discharge the burden of the plaintif to show the passing of title over the plaint schedule property from the vendors of plaintif in between 2002 to 2006.

46O.S.372/2014

40.P.W.4 is another witness, similarly got filed his chief affidavit and according to this witness he got purchased plot

No.9. However, the cross examination of this witness is similar to that of the earlier witnesses. This witness similarly stated that he does not know his plot and his surrounding plots and he does not know the particulars of the P.L.C., as referred in his chief affidavit.

41.The 5th witness is P.W.5, he similarly filed his chief affidavit reiterating the contents of the affidavits of P.Ws.2 to 4.

According to this witness, he purchased the plot No.12. Though the contents of the chief affidavit referred as plot No.12, in his cross examination at one point of time the same shows as plot

No.9. The reasons best known to the witness, the variance in his evidence when compared his chief examination with the cross examination remains unanswered. The cross examination of this witness similarly contrary to his chief affidavit when stated that he does not know his plot and its surrounding plots. Similarly, he does not know the particulars of the P.L.C., as referred in his chief examination. So, what else is required to conclude that all these witness are introduced by the plaintif to prove the factum of approved layout consisting 31 plots in a layout plan before the municipality wherein this witness also got purchased one of the plot which are all proved futile.

42.P.Ws.6 and 7 are also the third parties to the proceedings. The chief affidavits of these witnesses are similar 47O.S.372/2014 to one another. According to the evidence of P.W.6 he along with several others also purchased the properties from Shaik Meera

Vali and two others and got constructed houses and have been residing therein. He has been residing in the said property since from the date of purchase. During the cross examination, this witness stated that the schedule property is situated in

Rahamathullah nagar. As could be seen from his evidence shows there is a plan for the plot Nos.19, 20 and 21 purchased by the plaintif. However he was not present when the said plots were purchased by the plaintifs. The entire evidence of P.W.6 was disputed by the defendants by putting suggestions that the property is not situated in Rahamathullah nagar and he being the friend of plaintif deposing false to help him which are all denied by P.W.6. Though this witness stated that the purchase of property by his wife in the year 2013 and construction of a house in the said property, absolutely there is no material in order to prove the said fact. Here the contention of the plaintif is that the plaint schedule property is located in an approved layout laid in the year 2006 before the municipality, Narasaraopet wherein the plaintif purchased part of plot Nos.19, 20 and 21 which is an extent of 197.70 + 292.40 sq.yds. In order to prove the said factum, though the plaintif not ventured either to examine any one of his vendors to prove the passing of title to them from their vendees i.e., sons of Dontaraju Krishna Murthy after the disposal of L.G.C.No.76/1990 and getting an approval to lay plots in an approved layout, the evidence of P.Ws.2 to 7 who are said to be 48O.S.372/2014 the third parties to the proceedings was alone introduced in order to prove his right and title over the disputed property.

However the evidence of those witnesses has completely fumbled in order to prove the fact which was introduced subsequently by the plaintif contrary to his pleadings. The chief affidavit of P.W.7 is similar to that of the evidence of P.W.6.

According to this witness, he got purchased the property in plot

No.18. This witness was similarly tendered for cross examination wherein stated the total number of plots are 31 in an approved layout in the year 2006 by the municipality. But, in order to prove the said factum, there is no material on behalf of the plaintif and thereby results that the said fact is unproved.

During the cross examination, this witness stated that he cannot give the boundaries of property of the plaintif in part of the plot

No.19 and plot Nos.20 and 21. But, as per his version, plaintif is owner of part of the plot No.19, plot Nos.20 and 21. If at all P.W.7 is the owner of the plot No.18 he ought to have furnished the boundaries to the property of plaintif which is nothing but part of the plot No.19, plot Nos.20 and 21. This witness has similarly stated in his cross examination that he does not know the particulars of P.L.C., as referred in his chief affidavit . His evidence is similar to that of the remaining witnesses who unable to state the material particulars which are relevant to prove the right and title of plaintif over the present plaint schedule property which is southern part of the plot No.19, plot

Nos.20 and 21 in an approved layout as canvased by the 49O.S.372/2014 plaintif. So, the oral evidence on behalf of the plaintif particularly P.Ws.2 to 7 is absolutely not relevant in order to prove the passing of title coupled with possession to the plaintif from his vendor’s vendors in between 2002 to 2006.

43.Here the plaintif on whom the burden lies heavily even as per the observation by their lordships in the above referred case law, ought to have placed relevant material evidence to discharge the same. However, the plaintif except examining himself as P.W.1 did not adduce any other evidence particularly any one of his vendors to prove the contents of the documents under Exs.A2, A13 and A14. However, let us see the cross examination of P.W.1 in further, whether shows any material which is contrary to the case of the defendants. This witness was thoroughly cross examined by the counsel for defendants, wherein he admitted that the defendants purchased the schedule property and other property before filing of the

L.G.C., he also admitted that Yasani Lakshmi laid plots of an extent of Ac.5.47 cents and sold the same which was purchased by most of the employees . What else is required to consider the case of the defendants with regard to their purchase of plaint schedule property and other property in the year 1989 which is much before filing of the L.G.C.No.76/1990. Though the result of

L.G.C.No.76/1990 is otherwise to the case of the defendants absolutely the purchase of the property by the defendants 1 and 2 which is present schedule and other property before filing of the L.G.C., is not in dispute and it is well within the knowledge of 50O.S.372/2014 the plaintif. Similarly, laying of plots in the said Ac.5.47 cents by Yasani Lakshmi (vendor of defendants) and selling away those plots to the employees as contended by the defendants are also within the knowledge of the plaintif and knowing fully well he got purchased the property in pending litigation in the year 2006-2007. In this context, it is also relevant to refer the arguments of the counsel for plaintif coupled with the cross examination of 1st defendant as D.W.1. According to the plaintif, the property that was got purchased by the defendants under

Exs.A11 and A12 in the year 1989 on 20-3-1989 when executed by Yasani Lakshmi granddaughter of Boda Kotilingam in favour of the defendants 1 and 2 is not the present plaint schedule property and there is an identity dispute. The written arguments of the plaintif went on stating that the property of defendants is not identifiable and their own documents do not show any plot numbers and the cross examination of D.W.1 at one point of time stated that upto 2002, the same is an agricultural land and after the said property was purchased by Meera Vali and others, it was laid into plots wherein the plaintif purchased the property in the year 2006. By referring the relevant portion of evidence in the cross examination of D.W.1, the counsel for plaintif wants to take advantage in order to prove the factum of laying of plots by

Meera Vali and others after they purchased the property in the year 2002 and he wants to show suspicion in the identity of defendants’ property which was covered under Exs.A11 and A12, but absolutely such an argument is not worthy to consider the 51O.S.372/2014 case of the plaintif on whom the burden lies not only to establish the right, title and deliver of possession to the plaintif as well as his vendors in order to prove his right for the relief of declaration. It is settled proposition of law that any amount of weakness in the case of defendants would not helpful to the case of plaintif in order to discharge his burden in his prayer of declaration. When the plaintif himself admitted in his cross examination about his knowledge that the plaint schedule property was purchased by the defendants along with other property before filing of L.G.C and the vendor of defendants laid plots in Ac.5.47 cents and sold the same to the purchasers who are most of the employees, what else is required to disbelieve the version of plaintif that his vendors laid plots in 2006. The evidence of P.W.1 completely ruled out the case of the plaintif to believe his version i.e., plots that were referred by the plaintif in his pleadings as well as in his documents pertaining to approved layout. When the plaintif himself as P.W.1 admitted the laying of plots by the vendor of defendants and sold those plots to the third parties much before filing of L.G.C.No.76/1990, how the statement of D.W.1 at a stray in his cross examination would be helpful to believe the version of the plaintif in his improved arguments. In this context, it is also relevant to refer the argument of the counsel for defendants while drawing the attention of this court to the schedule appended to

L.G.C.No.76/1990 which was got marked as Ex.A7. The schedule in L.G.C.No.76/1990 referred the classification of land as dry 52O.S.372/2014 land developed as house sites. This further supports the case of the defendants to believe their version about laying of plots by their vendor by the time they got purchased the property in the year 1989. So, the contention of the plaintif in order to prove the factum of laying out of plots that too in an approved layout

before the municipality in the year 2006 after the vendor of the

plaintif purchased the property in the year 2002 is not at all proved.

44.Now, let us see the other objections that were raised by counsel for the defendants during the submission of their arguments, though the decree and judgment in L.G.C.No.76/1990 dt.18-7-1994 is available in record wherein the rights of the parties with regard to their title to the property covered in

T.S.1579/1 to an extent of Ac.5.47 cents was already determined by a competent special court having civil court jurisdiction, their contention going on stating that the said judgment is not binding on them. The reason for such a contention is that what are the material documents that are available to them were not placed by them in the said L.G.C., inadvertently. So, there is no full- fledged discussion with regard to their documents was done in the said L.G.C., and for that reason, the said judgment and decree is not binding on them. The counsel for defendants again in his submission reiterated the similar objections which were also raised in L.G.C.No.76/1990 and answered by the said court in its discussion elaboratively. One of the points raised by the counsel for the defendants is that the earlier title deeds of 53O.S.372/2014 plaintif’s vendor’s vendor shown the T.S.No. of the schedule as 1549 which was subsequently rectified as 1579, contrary to the contents found in their earlier title deeds. But, such an objection on the part of the defendants is absolutely unsustainable and not worthy of consideration since the said contention was already answered by the Special court in Ex.A7. At page No.19 in paragraph No.18, the same reads as follows: “I.A.2204/1985 in

O.S.181/1985 was filed to amend the T.S.No. Of the property in

the said suit to T.S.No.1579/1 from 1549/1. As per the orders dt.29-1-1988, the said application was allowed and the said order became final. The 1st respondent and others who were parties to the said proceedings have not chosen to challenge the same and in view of that it is not now open to the 1st respondent etc., to contend that the schedule property was not the property purchased under Exs.A1 and A2. So, the Hon’ble Land Grabbing

Tribunal already answered the query which was pointed out by the counsel for the defendants in the present suit on hand. The other objection that was raised by the counsel for the defendants is that though the special court declared the respondents as land grabbers, the criminal case that was registered basing on the observation of the L.G.C.No.76/1990 as C.C.No.1/1998 on the file of the Principal Junior Civil Judge, Guntur was ended in acquittal. Absolutely, the calendar and judgment in C.C.1/1998 would not helpful to the case of the defendants to show any bonafides on their part contrary to the title which was already decided and declared in favour of the petitioners in 54O.S.372/2014

L.G.C.No.76/1990. It is settled ratio of law that the judgments in criminal case are not binding on the proceedings of the civil courts. So, it would not show any material in favour of the defendants herein to canvas before this court that the respondents are not land grabbers as declared in

L.G.C.No.76/1990. So, such an argument on behalf of the defendants is absolutely improbable and unsustainable.

45.Now, coming to the other objection that was raised by the defendants at the time of their arguments with regard to the filing of L.G.C.No.76/1990 by one of the sons of Dontaraju

Krishna Murthy how entitle the other legal heirs to canvas themselves as absolute owners to the said property in order to execute registered sale deed under Ex.A2 in favour of Meera Vali and others. The contention of the defendants by raising such an argument is also similarly not worthy of credence and the findings in L.G.C.No.76/1990 while allowing the prayer not only on behalf of the petitioner but also the other legal heirs of

Krishna Murthy represented by the petitioner as kartha of their joint family itself enough to conclude that not only Dontaraju

Venkata Apparao but also the other sons of Venkata Krishna

Murthy were also declared as absolute owners of the schedule property covered in L.G.C.No.76/1990. So, there is no force in the contention of the defendants for the points that were raised by them through their counsel in their arguments. So, in view of the admissions in the cross examination of P.W.1 particularly with regard to fact of laying out of plots by the vendor of defendants 55O.S.372/2014 much prior to the filing of L.G.C.No.76/1990, completely ruled out the case of the plaintif to believe his version with regard to the alleged laying of plots by his vendors after they got purchased the property in the year 2002 by way of execution and registered the document in the year 2006 by paying the necessary stamp duty and penalty and obtained delivery of property. Here the plaintif in order to prove his title, except examining himself as

P.W.1, did not adduce any other evidence and not even tried to summon any one of the signatories on his behalf even to prove the contents of Exs.A1 and A2 by the sons of Dontaraju Krishna

Murthy in favour of Meera Vali and others who in turn executed

G.P.A., in favour of Sayani Anand Babu in order to transfer the property in favour of the plaintif herein by way of plots in an approved layout. The arguments on behalf of the counsel for the plaintif by concentrating over the finding in L.G.C.No.76/1990 when declared the sons of Dontaraju Venkata Krishna Murthy as the absolute owner of the schedule therein would not helpful to the case of the plaintif herein to canvas before this court that his right and title was already declared by a competent civil court in order to approach this court for the similar relief as prayed for. Mere marking the link documents of Exs.A13 and

A14 would not be helpful to the case of the plaintif to prove its contents. In this context it is relevant to refer the citation reported in AIR 1971 SC 1865 between Sait Tarajee

Khimchand and Others vs. Yelamarti Satyam and Others wherein the observation by their lordships of Hon’ble Apex Court 56O.S.372/2014 that “mere marking of a document as an exhibit does not dispense with the proof of document”. The above observation when applied to the present case on hand, absolutely the contents of the documents under Exs.A1, A2, A13 and A14 are not proved.

46.In view of the above discussion as the evidence of

P.W.1 is itself not enough to discharge the burden of the plaintif to prove his contention that he is absolute owner of the plaint schedule property by virtue of his sale deeds under Exs.A13 and

A14 for the property which are plot Nos.21, 20 and part of plot

No.19 in an alleged approved layout in T.S.No.1579/1.

Accordingly, this issue is answered against the plaintif.

Issue No.2:

47.The further contention of the plaintif basing on the evidence of P.Ws.1 to 7 is that since from the date of purchase of the plaint schedule property, he has been in peaceful possession and enjoyment of the plaint schedule property. In this context, it is relevant to refer one of the citations submitted by the counsel for plaintif reported in 2017 (2) ALT 468 between P.Jhon Britto vs. Potluri Srinivas Chowdary and another wherein the observation by their lordships of Hon’ble High Court of A.P., is that “since the property is a vacant property, which is incapable of being physically possessed all the time, then the principle to be applied is ‘possession follows title’.” By submitting this observation, counsel for plaintif wants to draw the attention of 57O.S.372/2014 this court that the title deeds of plaintif under Exs.A13 and

Ex.A14 are themselves enough to prove the possession of the plaint schedule property which is only a vacant site. By submitting the above proposition of law, the counsel for plaintif wants to draw the attention of this court with a submission that since the property is a vacant site there should not be any separate document to prove the possession of plaintif over the plaint schedule property. But absolutely the proposition of law submitted by the counsel for the plaintif in the above case law is not applicable to the present case on hand. Here is the own document of the plaintif i.e., Ex.A7 which is a judgment in

L.G.C.No.76/1990 shows that the conclusion of possession of the total extent of Ac.5.47 cents situated in T.S.No.1579/1 had with the possession and enjoyment of the respondents therein (the defendants 1 and 2 herein are the respondents 26 and 27 therein). Even as per the document of the plaintif under Ex.A2 after the disposal of L.G.C., the vendors of the said document secured possession of the property. Even as per the cross examination of P.W.1, the possession of the property was delivered by the respondents to the petitioner in

L.G.C.No.76/1990 in the year 1999. But, in order to prove the said contention, there is no scrap of paper before this court to believe the version of the plaintif. In those circumstances, the proposition of law as referred by the counsel for plaintif is absolutely not applicable to the case on hand. Not only that the evidences of P.Ws.2 to 7 in one voice stated the nature of the 58O.S.372/2014 plaint schedule property as vacant plots where the plaintif constructed basement and raised pillars which are all completely absent in the plaint schedule. If at all the evidence of P.Ws.2 to 7 is trustworthy, the plaintif ought to have produced relevant material to show the plan for the construction of structure in his site in accordance with law. But, the plaintif himself not whispered in his chief examination about the commencement of any construction in the plaint schedule though improved the same in his cross examination. The evidence of P.W.1 is not corroborating with the evidences of P.Ws.2 to 7 on that aspect.

In those circumstances, how the contention of the plaintif in order to show that the plaint schedule is a vacant site is appropriate to apply the analogy laid down by their lordships in the above case.

48.Let us examine the cross examination of defendants side witnesses with regard to the factum of possession of property contrary to the pleadings of the plaintif. When the 1st defendant was cross examined as D.W.1, counsel for plaintif wants to elicit through the witness by suggesting that the huts raised by the other purchasers are removed by police immediately after passing of the judgment in L.G.C.No.76/1990.

This is not the version of the plaintif at any point of time either in his pleadings or in his evidence as P.W.1. The own evidence of

P.W.1 in his cross examination shows the variations with regard to the delivery of possession. At one point of time, he stated that the property was delivered by the revenue people and by 59O.S.372/2014 changing the said version, he added that the respondents themselves handed over the possession after the disposal of

L.G.C.No.76/1990. In this context, it is relevant to refer the argument of the defendants on the said aspect by pointing out the pending litigation to believe the version of the plaintif side witnesses, when C.C.1/1998 (the judgment was got marked as

Ex.B6 on behalf of the defendants) was disposed of on 31-1-2005, which was registered basing on the complaint of the

L.G.C.court, against the vendors of defendants, how it would be appropriate to consider the contention of the plaintif that respondents in L.G.C., themselves got delivered the property to the petitioner therein during the pendency of criminal case. The submission of the defendants is just and convincing, when there is pending litigation one cannot expect the delivery of possession by the respondents who are accused in a criminal case. If really the respondents in L.G.C.No.76/1990 delivered possession of the property to the petitioners therein, immediately after the disposal of L.G.C., it must be born on record and in absence it could not be believable to any ordinary prudent man to act under those circumstances. In the absence of any such material on behalf of the plaintif, which is contrary to his pleadings and the recitals under Ex.A2, made this court to conclude that such a contention on behalf of the plaintif is absolutely not worthy and probable and thereby the said fact of delivery of possession of the property in L.G.c.No.76/1990 to the petitioner therein is similarly not proved.

60O.S.372/2014

49.Now, it is relevant to refer the contention of the defendants with regard to their suit in O.S.222/2006 on the file of

Principal Junior Civil Judge, Narasraopet when got filed the said

suit against the vendors of plaintif and the vendor of defendants seeking the relief of declaration and for recovery of possession.

Ex.A9 is the relevant document to prove the said contention. In

Ex.A9, there is copy of plaint, written statement, order in

I.A.813/2006 and certified copy of decree and judgment in

O.S.222/2006 were got marked. As could be seen from the said

documents show that the vendors of plaintif i.e., Shaik Meera

Vali and two others filed their written statement and contested the matter initially. Their contention in their written statement at page No.2, paragraph No.7 reads as follows: “The 4th defendant and Yasani Narasimhulu executed several deeds in respect of land i.e., an extent of Ac.5.47 cents of land to number of people including the plaintif herein. All of them removed the boundary stones and grabbed the said land. This is another area where the own document of plaintif is contrary to his submission.

According to the arguments of counsel for the plaintif, the entire land in an extent of Ac.5.47 cents i.e., schedule in

L.G.C.No.76/1990 is not in encroachment. Only part of the property is under encroachment, excluding the schedule in this suit. So, the argument is completely fumbled in view of their own pleadings i.e., pleadings of plaintif’s vendor in

O.S.222/2006. The other document is order in I.A.813/2006 in

O.S.222/2006 when pronounced on merits by dismissing the

61O.S.372/2014 prayer of the defendants herein for their relief of temporary injunction, restraining the respondents therein from executing any sale deeds in favour of third parties in its order dt.29-12-2006. However, subsequently the defendants (vendors of plaintif) in the said suit were remained exparte and accordingly a judgment was pronounced in favour of the defendants herein as plaintifs therein by allowing their prayer for declaration and recovery of possession. Here, it is relevant to refer the contention of the defendants for their title covered under Exs.B1 and B2. Ex.B1 is a title deed of the 1st defendant dt.20-3-1989 when purchased property in an extent of 585 sq.yds., in T.S.No.1579/1, absolutely there is no reference about any plot number. The property of the 2nd defendant is covered under Ex.B2 dt.20-3-1989 to an extent of 195 sq.yds., which includes the present plaint schedule without reference of any plot number. The plaintif similarly got exhibited the said documents as Exs.A11 and A12 on his behalf. Here, both the documents are of the year 1989 which is prior to the decree and judgment in L.G.C.No.76/1990 as admitted by P.W.1. According to the version of defendants in their pleadings though they got knowledge about the filing of L.G.C.No.76/1990 in view of their residence at far places due to their employment, they could not pursue the said case and what are the material documents on their behalf were not able to present before the said court and as such the decree and judgment in L.G.C.No.76/1990 is not binding on them. Absolutely such a contention on their behalf is 62O.S.372/2014 not sustainable since the decree and judgment in

L.G.C.No.76/1990 on the file of a competent special court having jurisdiction of a civil court. In this context, it is relevant to refer

Sec.9 of Land Grabbing (prohibition) Act, 1982 which reads as follows: “Special court to have the powers of the civil court and the court of Session:- Save as expressly provided in this Act, the provisions of the Code of Civil Procedure , 1908, the Andhra

Pradesh Civil Courts Act, 1972 and the Code of Criminal

Procedure , 1973, in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the

Special Courts and for the purposes of the provisions of the said enactments, Special court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.” So, the above referred provision made it clear that the judgment and decree on the file of the Special court have the power of civil court and shall be decreed to be a civil court and its verdict is binding on both parties to the proceedings in respect of the schedule thereunder.

The counsel for plaintif by way of his reply referred the judgment in L.G.C.No.76/1990 at the fag-end when referred number of applications got filed by the respondents therein to reopen the matter and to receive documents which are all dismissed with an elaborative discussion. So, the question of non-binding of the said judgment and decree to the defendants 63O.S.372/2014 herein who are some of the respondents therein does not arise.

The argument of the plaintif on the said aspect is quite sustainable and the respondents who got sufficient opportunity therein they got filed their documents along with appropriate applications at the fag-end, which were similarly discussed in the judgment in L.G.C.No.76/1990, dismissed when they were devoid of merits. However the vendor of the defendants aggrieved by the decree and judgment, preferred an appeal by way of writ petition under Ex.A8 similarly available with this court record in order to show that the proceedings in L.G.C.No.76/1990 attained finality and the same is binding on all the parties to the proceedings in L.G.C.No.76/1990. The defendants are completely debarred to take any rescue by submitting such an argument that their absence by that time when

L.G.C.No.76/1990 was going on, would not show any merits in their contention.

50.Now, it is relevant to refer the suit in O.S.222/2006 got filed by the defendants herein as plaintifs therein and obtained a decree and judgment in their favour under Ex.A9.

Absolutely the passing of decree in O.S.222/2006 is not in dispute. However, the argument of the counsel for plaintif went on stating that the same is a decree in nullity. Since the defendants by playing fraud and misrepresentation suppressed the factum of decree and judgment in L.G.C.No.76/1990, got filed the said suit in O.S.222/2006 which is absolutely non-est in the eye of law. The counsel for plaintif submitted number of 64O.S.372/2014 citations reported in that context. They are: 2009 (1) ALT 74 between G.Vidaysagar Rao vs. District Collector wherein their lordships of Hon’ble High Court of A.P., in their observation held that “it is well to remember that fraud vitiates all acts. Fraud is a false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor.” In another citation reported in 1994 SCC (1) between S.P.Chengalvaraya

Naidu vs. Jagannath wherein their lordships of Hon’ble High

Court of A.P., in their observation held that “fraud avoids all judicial acts, ecclesiastical or temporal observed chief justice

Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of law. Such a judgment and decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In another citation reported in 2011 (2) ALT 130 (D.B) Divisional Forest Officer, Eluru vs.

District Judge, West Godavari, Eluru and others wherein their

lordships of Hon’ble High Court of A.P., in their observation held that “the judgment or a decree obtained by playing fraud on court is a nullity and non est in the eye of law.” By submitting all these citations, counsel for plaintif wants to draw the attention of this court that the decree and judgment in O.S.222/2006 is a nullity and non est in the eye of law. The E.P proceedings in 65O.S.372/2014 pursuance of the said decree and judgment got filed by the defendants herein as decree holders in E.P.92/2011, is similarly nullity and the delivery recorded in the said E.P. is only a paper delivery and it does not binds the plaintif. The plaintif also got marked Ex.A10 which is the copy of execution petition in

E.P.92/2011 in O.S.222/2006 on the file of Principal Junior Civil

Judge, Narasaraopet. On the other hand, defendants in B-series

got exhibited the execution petition in E.P.92/2011 along with its schedule and docket proceedings as Ex.B4 and the delivery warrant along with delivery receipt as Ex.B5. The further argument of counsel for the plaintif shows that this court cannot consider the validity of decree and judgment besides the delivery recorded in E.P.92/2011 in view of the fraud and misrepresentation played by the plaintifs who are the defendants herein. This court is also agree with the argument submitted by the counsel for plaintif with regard to non- reference of earlier proceedings in L.G.C.No.76/1990 by the plaintifs in O.S.222/2006 is fatal to their claim. However when there is a decree and judgment passed by a competent civil court is available under Ex.A9 how the argument would be sustainable to treat the said document as nullity. The right recourse available to the plaintif is to sought for an appropriate relief to declare the said decree and judgment as null and void in view of the reasons as averred by the plaintif. In the absence of any such prayer though pleaded by the plaintif that would not suffice to consider the contention of the plaintif herein. The 66O.S.372/2014 defendants who got exhibited the E.P proceedings in E.P 92/2011 under Ex.B4 and the delivery receipt under Ex.B5 contending that the properties covered under Exs.B1 and B2 were already delivered to them physically in the said proceedings in

E.P.92/2011. The property of the plaintif herein is part of the

property covered under Ex.B2 belongs to the 2nd defendant. So, the question of possession of the plaint schedule property with the plaintif does not arise. The defendants besides examining the 1st defendant as D.W.1 also got examined two third parties to the proceedings as D.Ws.2 and 3 who are said to be the purchasers of some of the plots along with the defendants from

Yasani Lakshmi in the year 1985 and 1986 respectively. They also got examined one of the attestors to the delivery receipt under Ex.B5 as D.W.4. The counsel for plaintif who cross examined this witness at length started submitting the arguments that the cross examination of D.W.1 at one point of time shows that the property was delivered by the amin as per

Ex.B5 in the court premises, itself enough to conclude that the said delivery is only a paper delivery. Absolutely, the contention of plaintif on the said aspect is improbable in view of the proceedings in E.P.92/2011 wherein the docket proceedings reflects that the said court after recording the delivery terminated the E.P., that itself shows the execution proceedings in O.S.222/2006 was concluded after the property was delivered to the decree holders therein. In the absence of any steps on behalf of the plaintif to set aside the said decree in 67O.S.372/2014

O.S.222/2006 and not initiating any steps to challenge the

delivery recorded in E.P.92/2011, such an argument on behalf of the plaintif would not helpful to show any merits in his contention. All the citations submitted by the counsel for plaintif are absolutely not in dispute. But, coming to the case on hand, they are not appropriate before the present court to declare the decree and judgment in O.S.222/2006 as non-est in the eye of law in the absence of any specific prayer on his behalf to that efect before the competent court.

51.Now, it is relevant to refer the cross examination of defendants side witnesses particularly with regard to the possession of the property, as already discussed in the above paragraph with regard to the suggestion that was put to the

D.W.1 about the delivery of possession to the police by the respondents in L.G.C.No.76/1990 after the disposal of L.G.C., which is contrary to the evidence of P.W.1. D.W.2 who is a third party to the proceedings got filed his chief affidavit contending the total property of Ac.10.94 cents including the present plaint schedule disposed by Yasani Lakshmi wherein the defendants purchased the property as covered under Exs.B1 and B2. This witness in his chief affidavit stated that he had also purchased one plot in an extent of Ac.0.04 cents under a registered sale deed dt.16-10-1986 for a valid consideration of Rs.5,000/-, ever since he has been in possession and enjoyment of the said property. This witness was thoroughly cross examined by the 68O.S.372/2014 counsel for the plaintif wherein his signature on P.L.C 13/2013 was confronted and got exhibited as Ex.A15. Here the counsel for plaintif at the time of his argument by referring the document under Ex.A15 submitted that along with these defendants, D.W.2 and some others though obtained sale deeds from the vendor of defendants, subsequently, they got filed

P.L.C., before Mandal Legal Service Committee, Narasaraopet with a prayer to handover possession of the said property after measuring the said property through mandal surveyor. However, the said P.L.C., was closed with an observation that D.W.2 and others have no right over the said property. In order to prove the said factum, Ex.A15 which is only a signature of the witness on the P.L.C., was got exhibited and it was before this court to decide the said factum.

52.On perusal of the said document shows one P.L.C was got filed by D.W.2 seeking direction to the appropriate authorities to take steps to measure and handover the property purchased by them in pursuance of the registered sale deed. However, the order in P.L.C., shows that the said application was closed with an observation when the Tahsildar filed a report stating that the measuring of land is not possible as there are no boundaries in the said title deed and the layout of the said area was not filed along with the petition. So, the report of the Tahsildar shows that the property was not identifiable basing on the sale deed of

D.W.2, but not otherwise as submitted by the counsel for plaintif. Here, the counsel for plaintif by showing the 69O.S.372/2014 weaknesses in the case of defendants and other purchasers of plots from Yasani Lakshmi wants to gain the relief of plaintif for his prayer of declaration and recovery of possession which is absolutely not permissible. It is for him to explain the identity of his plot as part of the plot No.19, plot Nos.20 and 21 in the alleged approved layout before municipality of the year 2006.

But, in the absence of proof of any such fact in the evidence of

D.W.2 or the document under Ex.A15 could not show any material on his behalf in order to conclude that the plaintif discharged his burden to declare him as an absolute owner of the plaint schedule property. So, as could be seen from the evidence of D.W.2 coupled with the Ex.A15, the P.L.C was closed when the property covered under the sale deed produced by the said witness was not identifiable. In the cross examination of

D.W.2 it was similarly tried to elicit through the witness to know whether some of the purchasers raised huts in their properties and the same were removed after decreeing the above land grabbing case. This is another area where the contention of the plaintif went contrary to the earlier submissions. As could be seen from the plaint pleadings and the documents of the plaintif side shows that after the disposal of L.G.C., possession was handed over to the vendors under Ex.A2 without stating the mode of handing over possession. However, quite contrary to the said contention, the evidence of P.W.1 went on stating delivery of possession through revenue authorities at one point of time and subsequently by the respondents themselves in the 70O.S.372/2014 year 1999. Quite contrary to the admission of plaintif, he started suggesting to the 1st defendant as D.W.1 and D.W.2 that possession was taken over by the police and the huts of the purchasers were removed after the decree in the L.G.C., which are all shows variance in the stand of plaintif in order to believe his version. The evidence of D.W.3 which is similar to that of the evidence of D.W.2 before this court as one of the purchasers of the property under a registered sale deed dt.16-10-1986 in the name of his wife contended that he has been in possession and enjoyment of the property purchased under the above referred sale deed. This witness was similarly suggested in his cross examination by the counsel for plaintif that after the appeal preferred before the Hon’ble High Court and its disposal,

Dontaraju Krishna Murthy and others taken possession of the property. This is another area which is quite contrary to the earlier versions of the plaintif in order to prove the factum, how the vendors of plaintif got obtained possession of the property after the disposal of L.G.C.No.76/1990. There is no piece of document or any relevant evidence on behalf of the plaintif to prove before this court that the petitioner in L.G.C.No.76/1990 by following the procedure, obtained possession either through revenue people as directed by the said court in L.G.C.No.76/1990 or through the respondents. In the absence of any such evidence invariably this court has to draw inference that there was no such recovery of possession to the petitioner in

L.G.C.No.76/1990 for the property covered under the said case in 71O.S.372/2014 order to transfer the same to his vendees under Ex.A2. So, all the eforts on behalf of the plaintif in order to prove his contention that the possession of the property is well with the petitioners in L.G.C.No.76/1990 as found in the written arguments contrary to the pleadings and evidence are all proved futile in order to discharge his burden to prove the said fact.

53.Here, it is also relevant to refer the arguments of counsel for plaintif when referred the order in I.A.813/2006 in

O.S.222/2006 got filed by the defendants herein as petitioners

therein seeking for temporary injunction which was dismissed on merits. Wherein the observation of the trial court about the right and title of the petitioner in L.G.C.No.76/1990 before Land

Grabbing Court, not entitled the petitioners therein for their relief. Absolutely the order in I.A.813/2006 in O.S.222/2006 on the file of Principal Junior Civil Judge, Narasaraopet is not in dispute. However it is a settled ratio that once a final order is passed, the interim order mergers into the final order and the interim order (including all directions thereunder) automatically cease to operate. In this context, it is relevant to refer the observation before their lordships reported in State of Assam vs. Barak Upatyaka D.U Karamchari Sanstha 2009 (5) SCC 694 wherein the Hon’ble Apex Court held that “an interim order cannot be precedent and is only an order making temporary arrangement to preserve statusquo to ensure that the matter does not become either infructious or a fait accompli before final 72O.S.372/2014 hearing. The interim order does not finally and conclusive decide an issue and it is not possible to read such tentative reasons as final conclusion. So, the observation in the above case law completely debarred the plaintif to canvas any favour under the said order after the final disposal of the suit in

O.S.222/2006. The vendors of plaintif herein as defendants in

O.S.222/2006 for the reasons best known to them not contested

the mater resulted the exparte decree before the said court. So, absolutely, the plaintif has no option except to take recourse in the said proceedings on the final result and the order in

I.A.813/2006 in O.S.222/2006 would not helpful to him at any point of time after the final judgment of the said suit in

O.S.222/2006.

54.Last but not the least with regard to the other line of argument on behalf of the plaintif with reference to the identity of the property. In the written arguments filed by the plaintif through his counsel at one point of time raised a contention that the property of defendants is altogether diferent and distinct when compared to the property of plaintif. But, according to the defendants the property purchased by the 2nd defendant includes the present plaint schedule. Admittedly there are no plot numbers in the title deeds of defendants 1 and 2 in Exs.B1 and

B2, but contrary to the said schedule, the schedule in

O.S.222/2006 and the schedule in E.P.92/2011 they referred the

plot numbers as 11 and 12 for an extent of 390 sq.yds., shown 73O.S.372/2014 as Item No.1 and Item No.34 in an extent of 190 sq.yds., and in all, 585 sq.yds., covered under Ex.B1 and 195 sq.yds., in plot

No.33 covered by Ex.B2. If that is the case and according to the defendants, they are in possession and enjoyment of the present disputed property being the schedule in O.S.222/2006 certainly there would be identity dispute with regard to the property of the plaintif herein, but no steps were taken by the plaintif either to measure the plaint schedule property or to localize the said property in order to identify the disputed plots referred as south of plot No.19, plot Nos.20 and 21 in T.S.No.1579/1 in order to resolve the identity dispute. In the absence of any such steps on behalf of the plaintif invariably made this court to draw an adverse inference that intentionally steps were not taken and if at all they were taken, the same would goes against to the case of the plaintif which is well within his knowledge. In view of the above discussion as the evidence of plaintif similarly failed to show and to prove the factum of his possession and enjoyment of the plaint schedule property as on the date of filing of the present suit. Accordingly this issue is also answered against the plaintif.

Issue No.3:

55.In view of the findings on Issue No.2, when the decree and judgment in O.S.222/2006 has not challenged even after the date of the decree or even in the E.P.92/2011 at the time of delivery passed by a competent civil court which is so far not yet set aside by moving any appropriate application, made this court 74O.S.372/2014 to conclude that the same is binding on the plaintif.

Accordingly, this issue is answered.

Issue Nos.4 and 5:

56.In view of the findings on Issue Nos.1 and 2, these issues are answered against the plaintif.

Issue No.6:

57.In view of the findings on Issue Nos.1 to 5, the suit has to be dismissed. In the circumstances each party has to bear their own costs.

58.In the result, the suit is dismissed. Each party has to bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court this the 2nd day of September, 2021.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif: PW1: Kunkalagunta Sambasivarao (plaintif) PW2: Vanga Malla Reddy PW3: Tubati Appa Rao PW4: Nelluri Brahmaiah PW5: Nelaturi Suvarnaraju PW6: Pagadala Subrahmanyam PW7: Gokanakonda Mandaiah

For Defendants: DW1: Molatrati Raja Rao (1st defendant) DW2: Returu Prabhakara Rao DW3: Balijepalli Abraham DW4: Alladi Subhushana Rao 75O.S.372/2014

DOCUMENTS MARKED

For Plaintif: Ex.A1: C.C of power of attorney dated 25.11.2006 executed in favour of Sayani Ananda Babu by Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in respect of the schedule property

Ex.A2: C.C of the registered sale deed dated 06.05.2002 vide document No.5968 of 2006 executed by the sons of Dontaraju Krishna Murthy in favour of the Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet

Ex.A3: C.C of the sale deed dated 29.06.1907 vide document No.1561 of 1907 executed by Kolalapudi Pitchamma, W/o.Sadasivudu, in favour of Boda Koli Lingam and Boda Manchemma

Ex.A4: C.C of the registered sale deed dated 09.02.1930 vide document No.313 of 1930 for Ac.5:47 cents executed by Boda Manchemma, W/o.Koti Lingam and Swarna durgamba, W/o.Veera Raghava Chari, D/o.Manchemma in favour of Kakumanu Peda Peri Reddy

Ex.A5: C.C of the sale deed dated 09.06.1940 vide document No.1668 of 1940 executed by Kakumanu Peda Peri Reddy in favour of Dontaraju Krishna Murthy adopted son of Mallikarjuna Rao for Ac.2.47 cents out of Ac.5:47 cents

Ex.A6: C.C of the sale deed dated 09.06.1940 vide document No.1669 of 1940 executed by Kakumanu Peda Peri Reddy in favour of Dontaraju Veeramma, W/o.Mallikarjuna Rao for Ac.3:00 cents out of Ac.5:47 cents

Ex.A7: C.C of the decree and judgment passed in Land Grabbing Case No.76 of 1990 dated 18.07.1994 by the Hon’ble Land Grabbing Tribunal

Ex.A8: C.C of the order passed in Writ Petition No.21393 of 1994

dated 16.09.1998 by the Hon’ble High Court of A.P.,

Ex.A9: Copy of the decree and judgment, plaint, written statement order in I.A.813/2006 in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.A10: Copy of the E.P. No.92 of 2011 in OS No.222 of 2006

Ex.A11: C.C of the registered sale deed dated 20.03.1989 vide document No.1173 of 1989 standing in the name of the first defendant namely M. Raja Rao, S/o.Ananda Rao executed by Yasani Lakshmi, W/o.Narsimhulu, D/o.Boda Narayana Granddaughter of Boa Koti Lingam 76O.S.372/2014

Ex.A12: C.C of the registered sale deed dated 20.03.1989 document No.1174 of 1989 standing in the name of the second defendant namely Dasari Lara Grace Sarojini, D/o.Vandanam executed by Yasani Lakshmi, W/o.Narasimhulu, D/o.Boda Narayana granddaughter of Boda Koti Lingam

Ex.A13: Original registered sale deed dated 25-11-2006 vide document No.137392006 executed by Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in favour of the plaintif in respect of item No.1 of schedule mentioned property

Ex.A14: Original registered sale deed dated 16.01.2007 executed by Sayini Ananda Babu being the GPA of Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in favour of the plaintif in respect of plot No.20 and part of plot No.19 in respect of Item No.2 of schedule property

Ex.A15: Signature of petitioner Returu Prabhakar Rao in PLC No.13 of 2013 before the Lok Adaath at Mandal Level, Narasaraopet (marked in the cross examination of D.W.2)

Ex.A16: C.C of the registered sale deed dated 15.04.2008 executed by K. Srinivasa Reddy in favour of Vanga Malla Reddy

Ex.A17: C.C of the registered gift deed dated 19.04.2008 executed by Tubati Appa Raoi in favour of K. Hemantha Nagaraju

Ex.A18: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali in favour of Nelluri Brahmaiah

Ex.A19: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Nelaturi Suvarna Raju

Ex.A20: C.C of the registered sale deed dated 16.12.2013 executed by Sk. Meera Vali and others in favour of V. Sri Latha

Ex.A21: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Gokanakonda Mandaiah.

For Defendants: Ex.B1:Registration extract of the regd., sale deed dated 20.03.1989 vide document No.1173 of 1989 executed by Yasani Lakshmi @ Boda Lakshmi in favour of the first defendant

Ex.B2: Registration extract of the regd., sale deed dated 20.03.1989 vide document No.1174 of 1989 executed by Yasani Lakmi @ Boda Lakshmi in favour of the 2nd defendant 77O.S.372/2014

Ex.B3: Xerox copy of the certified copy of the decree and judgment dated 20.08.2010 passed in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.B4: Copy of the E.P. No.92 of 2011 in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.B5: Copy of the property delivery receipt dated 30.05.2011 in

E.P. No.92 of 2011 in OS No.222 of 2006

Ex.B6: Copy of the certified copy of the judgment dated 31.01.2005 passed in CC. No.01 of 1998 on the file of the Prl. Junior Civil Judge’s Court, Guntur.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

1O.S.370/2014

In the Court of the Addl. Senior Civil Judge: Narasaraopet,

Present:- Smt. Sunkara Sridevi, Addl. Senior Civil Judge, Narasaraopet,

Thursday, this the 2nd day of September, 2021,

Original Suit No.370 of 2014 Between:

Godugu Anjaneyulu, S/o.Raja Ratam, 41 years,…Plaintif

And

01. Molatrati Raja Rao (DIED),

02. Dasari Lara Grace Sarojini, D/o.Vandanam, 61 years,

03. Molatrati Mery Vandanam, W/o.Late Raja Rao, 69 years,

04. Molatrati Sunil Kumari, D/o.Late Raja Rao, 43 years,

05. Molatrati Meenakshi, D/o.Late Raja Rao, 33 years,

06. Molatrati Praveen Kumar, S/o.Late Raja Rao, 42 years,

07. Molatrati Neeharika, D/o.Late Raja Rao, 40 years, (Defendants 3 to 7 are added as LRs of deceased D1 as per the orders in IA No.643 of 2018 dated 28.01.2019)

...Defendants

This suit is coming on 14.07.2021 before me for arguments in the presence of Sri S. Ayyapa Raju, Advocate for the Plaintif and of Sri Chandra Anjaneyulu, M. Subhashini and M. Ramadevi, Advocates for the Defendants, upon hearing and considering the material on record, having stood over for consideration till this day, this Court delivered the following:

J U D G M E N T

This is a suit filed for declaration that the plaintif is the absolute owner of the plaint schedule property, consequentially seeking permanent injunction, restraining the defendants and their men from ever interfering with the peaceful possession and enjoyment of the plaintif over the plaint schedule property in any manner and for costs.

02.Initially the suit was got filed by the plaintif against the defendants 1 and 2. Subsequently as per the orders in 2O.S.370/2014

I.A No.643 of 2018 dated 28.01.2019 defendants 3 to 7 are added as legal heirs of deceased first defendant.

The brief averments of the plaint are as follows:

03.The plaintif is the absolute owner of the plaint schedule property, as he purchased the same under a registered sale deed dated 16.01.2007 vide document No.480 of 2007 for an adequate consideration of Rs.1,34,000/- from Sayini Ananda

Babu being the General Power of Attorney of Shaik Meera Vali,

Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar,

Narasaraopet, who inturn purchased the property from

Dhontaraju Venkata Appa Rao and others. Since from the date of purchase, the plaintif has been in peaceful possession and enjoyment of the plaint schedule property with absolute rights.

04.The plaint schedule property is part and parcel of total extent of Ac.10:94 cents. Originally the said property belonged to Kolalapudi Pitchamma, W/o.Sadasivudu, who got the property in a partition in between herself and her daughter-in- law under a registered partition deed dated 23.11.1884. The said Kolalapudi Pitchamma sold the said property of Ac.10:94 cents to Boda Koti Lingam, S/o.Veeranna and Boda Manchemma,

W/o.Koti Lingam under a registered sale deed dated 29.06.1907 vide document No.1561 of 1907 and delivered possession of the property to the vendees, who enjoyed the same with absolute rights. After the death of Boda Koti Lingam his wife Manchemma and his daughter Swarna Vani Durgamba, W/o.Veera Raghava 3O.S.370/2014

Chari being the legal heirs of Koti Lingam, succeeded the property and sold an extent of Ac.5:47 cents of Northern side to one Kakumanu Peda Peri Reddy, S/o.Rami Reddy under a registered sale deed dated 09.02.1930 vide document No.313 of 1930 and delivered possession of the property to him. They also sold the remaining Southern portion of Ac.5:47 cents to one

A. Veeraiah on the same date.

05.Subsequently, Kakumanu Peda Peri Reddy, S/o.Rami

Reddy sold the property under two registered sale deeds bearing document Nos.1668 and 1669 of 1940 dated 09.06.1940 to

Dontaraju Krishna Murthy, adopted son of Mallikarjuna Rao and

Dontaraju Veeramma, W/o.Mallikarjuna Rao and delivered the possession of the said property to them who had enjoyed the same with absolute rights and possession over the same.

06.As mattes stood thus, some persons including the defendants and their alleged vendor namely Yasani Lakshmi,

W/o.Narasimhulu, D/o.Boda Narayana, granddaughter of Boda

Koti Lingam tried to encroach and grab the entire extent of

Ac.5:47 cents, on that Dontaraju Venkata Appa Rao, S/o.Late

Krishna Murthy filed a petition before Land Grabbing Tribunal in

LGC No.76 of 1990 against those persons. The defendants herein were shown as respondents 26 and 27 therein. Their alleged vendor was also shown as second respondent. The

Hon’ble Land Grabbing Tribunal passed a reasoned judgment

after full pledged trial on 18.07.1994 with a categorical finding 4O.S.370/2014 that the defendants herein and their alleged vendor and some others have no manner of right whatsoever in the said property and the said property exclusively belongs to the vendors’ vendors’ family of the plaintif. It was also found in the judgment that the petitioners namely Dontaraju Venkata Appa Rao is the absolute owner of the property and the rival claim set up by the defendants’ vendor is not valid and the vendor of the defendants have no manner of right or any right of alienation over the said property.

07.Then the defendants’ vendor Yasani Lakshmi has filed a Writ Petition No.21393 of 1994 against the decree and judgment passed by the Land Grabbing Tribunal dated 18.07.1994 before Hon’ble High Court of A.P., it was dismissed on 16.09.1998 by confirming the decree and judgment passed by the Land Grabbing Tribunal in LGC No.76 of 1990. As such, the findings in the decree and judgment in LGC No.76 of 1990 are final and binding on all the parties including the defendants’ vendor and the defendants and the defendants who are parties to the said proceedings.

08.During the pendency of the proceedings the said

Yasani Lakshmi in collusion with defendants 1 and 2 created and brought into existence of the nominal and collusive registered sale deeds dated 20.03.1989 in favour of the first defendant and another document in the name of favour of second defendant in 5O.S.370/2014 respect of the property which is subject matter of the decision passed by the Hon’ble Land Grabbing Tribunal.

09.Basing on the collusive, sham and nominal documents and also suppressing the decree and judgment passed in Land

Grabbing Case No.76 of 1990 and Writ Petition No.21393 of 1994 being the parties to the proceedings defendants 1 and 2 got filed

OS No.222 of 2006 on the file of Prl. Senior Civil Judge’s Court,

Narasaraopet against Shaik Meera Vali, Bolla Brahma Naidu and

Shaik Showkath Ali of Prakash Nagar, Narasaraopet obtained a fraudulent and illegal exparte decree. Infact, initially when they filed one interlocutory application in IA No.813 of 2006 in

OS No.222 of 2006 seeking temporary injunction, was dismissed

on 29.12.2006. As such, there is no prohibition or prohibitory order from any Court of law either for alienation or sale of the property by Shaik Meera Vali and two others, but unfortunately, the suit wad decreed exparte and defendant filed E.P. No.92 of 2011 and obtained an exparty order against the above said persons. Infact, by then the plaintif has been in exclusive possession and enjoyment of the said property and the decree and E.P., proceedings are collusive and fraudulent and they do not confer any right to the defendants in any manner in view of the decree and judgment passed in Land Grabbing Court case

No.76 of 1990 and Writ Petition No.21393 of 1994.

10.After the death of Dontharaju Krishna Murthy, his sons namely Venkata Appa Rao, Mallikarjuna Rao, Venkateswara Rao, 6O.S.370/2014

Gopala Krisha Murthy, Murali Mohan and Vidya, W/o.Late

Dontaraju Seetha Rama Rao sold away the property to Shaik

Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of

Prakash Nagar, Narasaraopet under a registered sale deed dated 06.05.2002 and delivered possession of the property to them.

Subsequently, all the said three vendees converted the same into house plots by fixing boundaries and sold the plots therein to several individuals including the plaintif by executing separate sale deeds and delivered possession to the vendors respectively. Since the date of purchase, the plaintif, being an absolute owner of the plaint schedule property has been in exclusive possession and enjoyment of the said property with absolute rights to the knowledge of one and all. Inspite of it, the defendants have been making false claims and threatening the plaintif with dire consequences and tried to dispossess him from the plaint schedule property and created a cloud over the right, title and interest of the plaintif in the suit schedule property.

Hence, the suit.

11.During the pendency of the suit, first defendant died intestate on 29.06.2018, leaving behind his legal heirs, defendants 3 to 7. They are in possession and enjoyment of the estate of the deceased first defendant. Hence, they are proper and necessary parties to the suit for just decision of the case.

7O.S.370/2014

The brief averments of the written statement filed by the defendants 1 and 2 adopted by the defendants 3 to 7 in their memo dated 01.02.2021 are as follows:

12.They refuted all the allegations in the plaint and contended that originally one Boda Koti Lingam, paternal grandfather of defendants’ vendors owned Ac.10:94 cents including the plaint schedule property at Narasaraopet and enjoyed the same during his life time. He died intestate long back leaving behind his granddaughter namely Yasani Lakshmi @

Boda Lakshmi. Ever since, she enjoyed the properties with absolute eights as only legal heir of deceased Koti Lingam. She sold away plot Nos.11 and 12 in an extent of 390 square yards and item No.34 in an extent of 195 square yards in total an extent of 585 square yards of vacant site to the first defendant under a registered sale deed bearing document No.1173 of 1989

dated 20.03.1989 for a valid and adequate consideration of

Rs.23,400/-. She also sold away plot No.33 in an extent of 195 square yards of vacant side which includes the suit schedule property to the second defendant under a registered sale deed bearing document No.1174 of 1989 dated 20.03.1989 for a valid and adequate consideration of Rs.7,800/-. Infact the defendants are bonafide purchasers for valuable consideration. Ever since from the date of purchase they have been in peaceful possession and enjoyment of their respective properties. In fact, number of persons had purchased the house sites in and around the properties of the defendants by that time. Dontaraju Krishna

Murthy filed OS No.181 of 1985 on the file of District Munsif 8O.S.370/2014

Magistrate’s Court at Narasaraopet against the vendors of the

defendants for permanent injunction and the said suit was dismissed against which there were no proceedings of any kind.

Therefore no cases of any kind were pending against the said property in the year 1989.

13.One Dontaraju Venkata Appa Rao filed Land Grabbing case No.76 of 1990 against not only the vendor of the defendants, but also most of her vendees in respect of Ac.5:47 cents which includes the suit schedule property as if his ancestor purchased the same from one Kakumanu Peda Peri Reddy who alleged to have been purchased the same from the legal heirs of

Boda Koti Lingam namely Manchamma and her daughter. The defendants who were employees used to stay at their working places unable to pay their attention either on the said case or also with regard to their properties including the suit schedule property. In the year 2006 when they went to the suit schedule property, the vendors of the plaintif by name Shaik Meera Vali,

Bolla Brahma Naidu and Showkath Ali obstructed them to enter into their plots alleging that they have purchased the said properties including the plaint schedule property for which they got filed OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s

Court, Narasaraopet against the vendors of the plaintif and another, seeking for declaration and for recovery of possession.

In the said suit the vendors of the plaintifs filed their written statement with a contention what all alleged in the plaint herein was mentioned therein. The said decree became final as there 9O.S.370/2014 were no proceedings against the said decree and it binds all including the plaintif who is said to be their vendee. In pursuance of the decree, the vendors of the plaintif did not entrust the possession of the plaint schedule property and another property and on that the defendants herein filed EP

No.92 of 2011 and got possession of the property on 30.05.2011 through Court as per law.

14.The contention of the defendants in further shows that Land Grabbing Case No.76 of 1990 was allowed in favour of

Dontaraju Venkata Appa Rao who alone filed without adding the other legal heirs of Dontaraju Krishna Murthy, without giving an opportunity to the defendants vendors, to prove their title and possession, though it was agitated before Hon’ble High Court by way of Writ Petition, the same was unfortunately dismissed.

Even assuming without admitting that the defendants and their vendors are land grabbers, the said Dontaraju Venkata Appa Rao did not take any steps in getting possession of the said property as such the alleged possession of Venkata Appa Rao is false. The person Venkata Appa Rao filed criminal complaint as per Land

Grabbing Case against the vendors of the defendants and her husband in CC No.03 of 1998 on the file of Prl. Junior Civil Judge’s

Court at Guntur for punishment as Land Grabbers. The said criminal case was acquitted on 31.01.2005 with a finding that they are not land grabbers as such they are not liable for conviction under land Grabbing Case against which there were no proceedings. Therefore, no sufficient documents were placed 10O.S.370/2014 in the said case in time due to which it was allowed but not with any other reasons. Therefore, the said Land Grabbing Court decree does not bind the defendants in any manner.

15.The contention of the defendants lastly shows that the vendors of the plaintif got issued a legal notice through one

Gokanakonda Mandaiah, S/o.Jagannadham of Petlurivaripalem village on 07.04.2014 claiming the properties of defendants as if it was purchased by him from the vendors of the plaintifs on 29.06.2006, for which a reply was sent due to which he kept quiet. Thereon the vendors of the defendants got filed the present suit with the plaintif with a view to harass them. The plaintif is not a bonafied purchaser, he colluded with his vendors and knowing fully well about the proceedings in between the defendants and his vendors, he got filed the suit, it is liable to be dismissed. There are no bonafides to file the suit and there is no cause of action and the alleged cause of action is a created one.

The framing of suit is quite incorrect. The plaintif approached the Court with utmost unclean hands by paving with all false allegations for the purpose of litigation as such they are not entitled to any discretionary relief of declaration and injunction.

Hence, the suit is liable to be dismissed with costs.

16.Inadvertently issues were settled at twice. Initially on 25.07.2015 basing on the above pleadings my predecessor in office settled the following issues:

11O.S.370/2014

01.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet filed by the defendants 1 and 2 against the vendors of the plaintif binds on the plaintif?

02.Whether the decree in Land grabbing case No.76 of 1990 does not bind on the defendants?

03.Whether the plaintif is in possession of the schedule property?

04.Whether the plaintif is entitled for the relief of declaration as prayed for?

05.Whether the plaintif is entitled for the relief of permanent injunction as prayed for?

06.To what relief?

17.Again on 26.02.2021 the following issues are settled:

01.Whether the plaintif is absolute owner of plaint schedule property?

02.Whether the plaintif is in possession and enjoyment of plaint schedule property as on the date of filing of the suit?

03.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet is binding on the plaintif?

04.Whether the plaintif is entitled for declaration as prayed for?

05.Whether the plaintif is entitled for permanent injunction as prayed for?

06.To what relief?

12O.S.370/2014

18.Hence, the issues settled as referred above are recasted as follows:

01.Whether the plaintif is absolute owner of plaint schedule property?

02.Whether the plaintif is in possession and enjoyment of plaint schedule property as on the date of filing of the suit?

03.Whether the decree in OS No.222 of 2006 on the file of Prl. Junior Civil Judge’s Court, Narasaraopet filed by the defendants 1 and 2 against the vendors of the plaintif binds on the plaintif?

04.Whether the plaintif is entitled for declaration as prayed for?

05.Whether the plaintif is entitled for permanent injunction as prayed for?

06.To what relief?

19.On behalf of the plaintif, P.Ws.1 to 7 are examined.

Exs.A1 to A20 are marked. P.W.1 is the plaintif-Godugu

Anjaneyulu, P.W.2 is Vanga Malla Reddy, P.W.3 is Tubati Appa Rao,

P.W.4 is Nelaturi Suvarnaraju, P.W.5 is Nelluri Brahmaiah, P.W.6 is

Pagadala Subrahmanyam and P.W.7 is Gokanakonda Mandaiah.

Ex.A1 is the certified copy of power of attorney dated 25.11.2006 executed in favour of Sayani Ananda Babu by Shaik Meera Vali,

Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar,

Narasaraopet in respect of the schedule property, Ex.A2 is the certified copy of the registered sale deed dated 06.05.2002 vide 13O.S.370/2014 document No.5968 of 2006 executed by the sons of Dontaraju

Krishna Murthy in favour of the Shaik Meera Vali, Bolla Brahma

Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet,

Ex.A3 is the certified copy of sale deed dated 29.06.1907 vide document No.1561 of 1907 executed by Kolalapudi Pitchamma,

W/o.Sadasivudu, in favour of Boda Koli Lingam and Boda

Manchemma, Ex.A4 is the certified copy of registered sale deed

dated 09.02.1930 vide document No.313 of 1930 for Ac.5:47

cents executed by Boda Manchemma, W/o.Koti Lingam and

Swarna durgamba, W/o.Veera Raghava Chari, D/o.Manchemma in favour of Kakumanu Peda Peri Reddy, Ex.A5 is the certified copy of the sale deed dated 09.06.1940 vide document No.1668 of 1940 executed by Kakumanu Peda Peri Reddy in favour of

Dontaraju Krishna Murthy adopted son of Mallikarjuna Rao for

Ac.2.47 cents out of Ac.5:47 cents, Ex.A6 is the certified copy of the sale deed dated 09.06.1940 vide document No.1669 of 1940 executed by Kakumanu Peda Peri Reddy in favour of Dontaraju

Veeramma, W/o.Mallikarjuna Rao for Ac.3:00 cents out of Ac.5:47 cents, Ex.A7 is the copy of the decree and judgment passed in

Land Grabbing Case No.76 of 1990 dated 18.07.1994 by the

Hon’ble Land Grabbing Tribunal, Ex.A8 is the copy of the order

passed in Writ Petition No.21393 of 1994 dated 16.09.1998 by the Hon’ble High Court of A.P., Ex.A9 is the copy of the decree and judgment, plaint, written statement and order in

I.A.813/2006 in OS No.222 of 2006 on the file of the Prl. Junior

Civil Judge’s Court, Narasaraopet, Ex.A10 is the copy of the E.P.

14O.S.370/2014

No.92 of 2011 in OS No.222 of 2006, Ex.A11 is the certified copy of the registered sale deed dated 20.03.1989 vide document

No.1173 of 1989 standing in the name of the first defendant namely M. Raja Rao, S/o.Ananda Rao executed by Yasani

Lakshmi, W/o.Narsimhulu, D/o.Boda Narayana Granddaughter of

Boa Koti Lingam, Ex.A12 is the certified copy of the registered sale deed dated 20.03.1989 vide document No.1174 of 1989 standing in the name of the second defendant namely Dasari

Lara Grace Sarojini, D/o.Vandanam executed by Yasani Lakshmi,

W/o.Narasimhulu, D/o.Boda Narayana granddaughter of Boda

Koti Lingam, Ex.A13 is the original registered sale deed dated 16.01.2007 executed by Sayini Ananda Babu being the GPA of

Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of

Prakash Nagar, Narasaraopet in favour of the plaintif in respect of suit schedule property, Ex.A14 is the signature of petitioner

Returu Prabhakar Rao in PLC No.13 of 2013 before the Lok

Adalath at M.L.S.C., Narasaraopet (marked in the cross examination of D.W.2). Ex.A15 is the certified copy of the registered sale deed dated 15.04.2008 executed by K. Srinivasa

Reddy in favour of Vanga Malla Reddy, Ex.A16 is the certified copy of the registered gift deed dated 19.04.2008 executed by

Tubati Appa Raoi in favour of K. Hemantha Nagaraju, Ex.A17 is the certified copy of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali in favour of Nelluri Brahmaiah,

Ex.A18 is the certified copy of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of 15O.S.370/2014

Nelaturi Suvarna Raju, Ex.A19 is the certified copy of the registered sale deed dated 16.12.2013 executed by Sk. Meera

Vali and others in favour of V. Sri Latha and Ex.A20 is the certified copy of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Gokanakonda

Mandaiah.

20.On behalf of the defendants, D.Ws.1 to 4 are examined and Exs.B1 to B6 are marked. D.W.1 is the first defendant-Molatrati Raja Rao, D.W.2 is Returu Prabhakara Rao,

D.W.3 is Balijepalli Abraham and D.W.4 is Alladi Subhushana Rao.

Ex.B1 is the Registration extract of the regd., sale deed dated 20.03.1989 vide document No.1173 of 1989 executed by Yasani

Lakshmi @ Boda Lakshmi in favour of the first defendant, Ex.B2 is the registration extract of the regd., sale deed dated 20.03.1989 vide document No.1174 of 1989 executed by Yasani

Lakmi @ Boda Lakshmi in favour of the 2nd defendant, Ex.B3 is the Xerox copy of the certified copy of the decree and judgment

dated 20.08.2010 passed in OS No.222 of 2006 on the file of the

Prl. Junior Civil Judge’s Court, Narasaraopet, Ex.B4 is the copy of the E.P. No.92 of 2011 in OS No.222 of 2006 on the file of the Prl.

Junior Civil Judge’s Court, Narasaraopet, Ex.B5 is the copy of the property delivery receipt dated 30.05.2011 in E.P. No.92 of 2011 in OS No.222 of 2006 and Ex.B6 is the copy of the certified copy of the judgment dated 31.01.2005 passed in CC. No.01 of 1998 on the file of the Prl. Junior Civil Judge’s Court, Guntur.

16O.S.370/2014

21.Heard counsel for the plaintif and the defendants both physically and virtually through blue jeans. Counsel for the plaintif also filed his common written arguments in

O.S.372/2014 on the file of this court.

22.Before adverting to the arguments submitted by the respective sides, it is relevant to refer the other suit in

O.S.372/2014 got filed by the plaintif (Kunkalagunta

Sambasivarao) against the same defendants herein for the relief of declaration and permanent injunction in respect of the plaint schedule i.e., plot Nos.21, 20 and southern part of plot No.19 in

T.S.No.1579/1. The present suit on hand got filed by the plaintif (Godugu Anjaneyulu) against the defendants in O.S.372/2014 sought for the reliefs declaration and permanent injunction in respect of his property i.e., schedule property is north of plot

No.19. In both suits, the witnesses, documents as well as their arguments are common.

23.The submissions of counsel for the plaintif in his written arguments as well as in oral submission concentrated on several aspects. The initial contention is that the judgment in

L.G.C.No.76/1990 is a material document where the right and title of the plaintif’s vendor’s vendor has finalized and it invariably entitle the plaintif to prove his right and title over the plaint schedule property. The other contention is that the schedule in O.S.222/2006 and the present plaint schedule are diferent and there is no identity of the defendants’ property and 17O.S.370/2014 the evidence of P.Ws.1 to 7 categorically shows that the plaint schedule property is diferent from the property of defendants.

His argument also concentrated on the factum of possession.

According to the plaintif, the property is a vacant site and as per the findings in the judgment in L.G.C.No.76/1990, some of the respondents raised some huts in the portion of the property and in fact the defendants’ vendor was never in possession of the property, but tried to encroach into the property by removing the fence which was also noticed in the findings of the said judgment. The written arguments of the plaintif at one point of time concentrated on the filing of the suit in O.S.222/2006 by the defendants for declaration and recovery of possession is a clear proof that the plaintif in the said suit have no title and possession over the property and the plaintif in this suit and his vendors are in possession and enjoyment of the said property.

The application in I.A.813/2006 was dismissed on merits on 29-12-2006 with a categorical finding that the defendants herein and their vendors have no right, title and possession over the property and that the vendors of the plaintif are the absolute owners of the property having right, title and possession and even can enjoy the property as of right, is itself clear to prove the right, title and possession of the plaintif over the plaint schedule property. The written arguments also concentrated on the fundamental principles of law that “possession follows title” since the schedule property is a vacant land and the title of the property was already decided in favour of the plaintif’s vendor’s 18O.S.370/2014 vendor in L.G.C.No.76/1990. Per contra, counsel for the defendants in his submission stated that the defendants purchased the property in the year 1989 by that time there was no pending litigation over the said property. Apart from the defendants, there were other third party purchasers purchased the plots in the year 1986 i.e., after the dismissal of the suit in

O.S.181/1985 got filed by Dontaraju Krishna Murthy against the

vendor of the defendants. His argument very much concentrated about the possession of the plaintif and his vendors in between 1942 to 2002. When the L.G.C. court in

O.S.76/1990 had given a finding that Dontaraju Venkata Apparao

and others (sons of Venata Krishna Murthy/plaintif’s vendors’ vendor) were not in possession of the schedule property and a direction was given to the respondents therein to handover the possession of the property within two months or otherwise the

R.D.O., has to initiate proceedings how made the plaintif to canvas before this court that he has been in possession and enjoyment of the plaint schedule property by virtue of his sale deed in the year 2006 and before that his vendors in the year 2002 without any proceedings either from the R.D.O., or any evidence in order to show the delivery of property by the respondents in L.G.C.No.76/1990 to the vendors of plaintif.

Counsel for defendants also submitted that they are not admitting the title of vendor of plaintif’s vendor as observed in

L.G.C.No.76/1990 in view of non-submission of material documents by the respondents on their behalf. Not only that, he 19O.S.370/2014 also pointed out the discrepancy with regard to the S.No.1579 which is not the survey number in the title of Boda Kotilingam.

Counsel for the defendants concluded his arguments that when the defendants obtained possession in O.S.222/2006 through court proceedings, they are deemed proceedings unless they are proved as paper proceedings, but the plaintif did not take any steps in order to prove the said proceedings as paper proceedings. Since the plaintif has not in possession of the plaint schedule property even through his vendors unless the defendants are evicted under due process of law, he is not entitled for the relief of declaration and recovery of possession.

Counsel for the defendants also pointed out the maintainability of the suit, when hit by the principles of resjudicata as the title to the property was already decided in O.S.222/2006 and there are no pending proceedings on behalf of the plaintif herein to set aside the decree and judgment of the said suit.

Issue No.1:

24.The case of the plaintif basing on the evidence of

P.Ws.1 to 7 coupled with Exs.A1 to A20 is that he is absolute owner of the plaint schedule property which is an extent of 196.84 sq.yds., i.e., north of plot No.19 situated in T.S.No.1579/1 and assessment No.602 as shown in the plaint schedule purchased from his vendors on 16-1-2007 by virtue of a registered sale deed executed by Sayani Ananda Babu being the

G.P.A of Shaik Meera Vali, Bolla Brahma Naidu and Shaik

Showkath Ali of Narasaraopet on payment of valid sale 20O.S.370/2014 consideration and since then he has been in possession and enjoyment of the said property. The contention of the plaintif is that the plaint schedule property is part of a total extent of

Ac.10.94 cents originally belonged to one Kolalapudi Pitchamma who sold the property to Boda Kotilingam and his wife

Manchamma in the year 1907 and after the death of Kotilingam, his legal heirs sold away the said property i.e., Ac.5.47 cents on the north, to one Kakumanu Peda Papireddy and Ac.5.47 cents on the south to one A.Veeraiah on two diferent sale deeds dt.9-2-1930, delivered possession of the property to the said vendees. Kakumanuy Peda Papireddy in turn sold the said property under two registered sale deeds to Dontaraju Krishna

Murthy and his adopted mother Dontaraju Veeramma and delivered possession of the said property. As the matter stood thus, the granddaughter of Boda Kotilingam by name Yasani

Lakshmi when tried to encroach and grab the extent of Ac.5.47 cents, Dontaraju Venkata Apparao, s/o late Krishna Murthy filed a petition before Land Grabbing Tribunal in L.G.C.No.76/1990 against the defendants herein (respondents 26, 27 therein) and some others obtained a judgment with a declaration that

Dontaraju Venkata Apparao and his family members are absolute owners of the schedule property therein and thereafter the petitioner in L.G.C.No.76/1990 and other legal heirs of Krishna

Murthy sold away the property to his vendors Shaik Meera Vali,

Bolla Brahma Naidu and Shaik Showkath Ali under a registered sale deed dt.6-5-2002 and delivered possession to them who 21O.S.370/2014 converted the said property into house plots, wherein the plaintif purchased the plaint schedule property under the registered sale deed dt.16-1-2007. Here the contention of the plaintif in further shows that the defendants herein by playing fraud and misrepresentation, obtained an exparte decree in

O.S.222/2006 filed against the plaintif’s vendors on the file of

Principal Junior Civil Judge Court, Narasaraopet for declaration

and recovery of possession which is a nullity, non-est in the eye of law and absolutely not binding on the plaintif.

25.Per contra, the contention of the defendants basing on the evidence of D.Ws.1 to 4 coupled with Exs.B1 to B6 is that originally one Boda Kotilingam, the paternal grandfather of defendants’ vendor owned Ac.10.94 cents and enjoyed the same till his last breathe. He died intestate leaving behind the defendants’ vendor Yasani Lakshmi as sole legal heir. Ever since she enjoyed the property with absolute rights. The said Lakshmi sold away plot Nos.11 and 12 in an extent of 390 sq.yds., and

Item No.34 in an extent of 195 sq.yds., and in total 585 sq.yds., of vacant site to the 1st defendant under a registered sale deed dt.20-3-1989 for a valid and adequate consideration and also sold another plot No.33 in an extent of 195 sq.yds., of vacant site which includes the present plaint schedule property to the 2nd defendant under a registered sale deed dt.20-3-1989 for a valid and adequate consideration. The defendants are bonafide purchasers for valid consideration. Ever since from the date of their purchase, they have been in possession and enjoyment of 22O.S.370/2014 their respective properties. Number of persons have also purchased the house sites in and around the property of defendants by that time. The defendants who are employees used to stay at their working places unable to pay attention on the case in L.G.C.No.76/1990 or with regard to the properties included in the said schedule property. In the year 2006 when they went to their schedule properties, the vendors of the plaintif obstructed them to enter into their plots alleging that they have purchased the said property and due to their high handed activities the defendants were disposed from their properties including the plaint schedule property and having no other go, they got filed O.S.222/2006 on the file of Principal

Junior Civil Judge, Narasaraopet against the vendors of the plaintif and another for declaration and for recovery of possession which was decreed in their favour on 20-8-2010. In pursuance of the said decree when the vendors of the plaintif did not entrust the possession of the suit schedule property and another property, they got filed E.P.92/2011 and got possession of the suit property and another property on 30-5-2011 through court as per law. Hence, the suit is liable to be dismissed.

26.Since the plaintif got filed the main suit contending that he is absolute owner of the plaint schedule property by virtue of his title deed dt.16-1-2007 and since then he has been in possession and enjoyment of said property the burden is on the plaintif in order to prove not only his right and title over the plaint schedule property but also the right and title of his 23O.S.370/2014 vendors in order to canvas himself as absolute owner of the property. The settled ratio with regard to the burden in a suit for declaration which is only on the plaintif and he cannot take advantage in the weakness of the defendants’ case and the ratio that has been laid down by their lordships in a catena of citations which are reproduced hereunder.

The observation by their lordships of Hon’ble Apex

Court reported in AIR 2014 SUPREME COURT 937 Union of

India and others vs. Vasavi Co-operative Housing Society

Ltd., and others wherein their lordships of Hon’ble Apex court in their observation held that :

(i)“It is trite law that, in a suit for declaration of title, burden always lies on the plaintif to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintif.”

(ii)Their lordships also referred the observation reported in

AIR 1959 SC 31 Maran Mar Basselios Cathelics vs. Thukalan

Paulo Avira.

The similar observation that “in a suit for declaration if the plaintifs are to succeed, they must do so on the strength of their own title.”

(iii)In another citation referred in the same decision reported in AIR 1995 SC 1377 Naragapalika, Jind vs. Jagath

Singh it was held that:

“the onus to prove title to the party in a question was on the plaintif.” 24O.S.370/2014

(iv)In another citation reported in 1977 (1) ALT 532

Kanchi Subbamma vs.Manepalli Penchalayya wherein the observation by their lordship that:

“plaintif cannot get declaration of his title merely because defendant has failed to prove his title. Burden or proving title which the plaintif claims lies on him and if he fails to discharge that burden his suit must fail irrespective of whether the defendant has proved his title to the land in question or not.”

27.In another citation reported in 1999 (2) ALD 590

A.Ramloo vs. G.Sriramachandra Murthy wherein the similar observation by their lordships of Hon’ble High Court of Andhra

Pradesh that the plaintifs must prove their title and must establish identity of the property by reiterating the decision reported in Kanchi Subbamma and others. The other citation reported in 2018 (5) ALT 511 in between Uppara Anjinappa (died) and others vs. T.Khasim Sab (died) per LR and others wherein the observation by their lordships of Hon’ble High Court reiterated the observation of the Hon’ble Apex Court reported in

Union of India vs. Vasavi Cooperative Housing Society

Limited.

28.As per the ratio laid down by their lordships in the above case law when applied to the present case on hand, in this case also the burden is only on the plaintif who approached this court for the relief of declaration and he ought to have established not only his right and title over the disputed schedule property but also his vendors in order to get the relief 25O.S.370/2014 in his favour. In this context, it is relevant to refer the written arguments submitted by the counsel for the plaintif. Contrary to the settled ratio, the counsel for the plaintif in his written arguments at page No.6 in paragraph No.5 contended that “this being a suit for declaration and both parties have adduced oral and documentary evidence and at this stage the question of burden of proof does not arise and the Hon’ble court has to consider the pleadings, the issues, the documents and the oral evidence placed before this court.” The reasons best known to the counsel his arguments went on stating as referred above in order to relieve the plaintif from his burden in a suit for declaration. But, on the other hand, the counsel for the defendants opposed to consider the said contention and contended that the burden is only on the plaintif and he ought to have discharge his burden by placing positive evidence to get the relief in his favour. In this context, he has also relied on the citations reported in 2009 (5) SCC 318 in between

T.K.Mohammad Abubucker(d) LRs., and others vs. P.S.M

Ahamed Abdul Khader and others wherein the observation by their lordships of Hon’ble Apex Court that “a plaintif in a suit for declaration of title and possession, can succeed only by making out his title and entitlement to possession and not on any alleged weakness in title or possession of defendants.”

In another citation reported in 1999 (2) ALT 624 between

A.Ramloo and others vs. G.Sreeramachandra Murthy and others wherein the observation by their lordships of Hon’ble

High Court of A.P., that 26O.S.370/2014 “when the plaintifs filed the suit for recovery of possession on the strength of title, the plaintifs will stand or fall depending upon the evidence available on record. The plaintifs must prove their case. The plaintifs will not be entitled to get declaration of title if they failed in establishing their title in respect of the suit land.” In another citation reported in 1999 (3) ALT 210 between A.Venkata Subbareddy vs. Bairagi Ramaiah (died) and his L.Rs., wherein the observation by their lordships of

Hon’ble High Court of A.P., that

“the plaintif in ejectment suit must succeed on the strength of his own title. This can be done by adducing sufficient evidence to discharge the onus that is on him irrespective of whether the defendant has proved his case or not. A mere distinction of the defendant’s title in the absence of establishment of his own title carries the plaintif nowhere.”

29.The observation by their lordships is aptly applicable to the present case on hand, where the plaintif approached this court for the relief of declaration of his title over the plaint schedule property. Though the written arguments filed by the counsel for the plaintif contending that the proposition of law referred in the above case law does not apply to the present case on hand, no much weight could be given to such a contention.

30.Let us, examine the evidence of plaintif coupled with his documents, whether proves any of his contention in order to declare him as absolute owner of the plaint schedule property.

The plaintif in order to discharge his burden besides examining himself as P.W.1 also adduced the evidence of P.Ws.2 to 7 who 27O.S.370/2014 are none other than the neighbouring plot owners to the plaint schedule property in order to prove the factum that there are other third party purchasers for their respective plots from the vendors of the plaintif herein.

31.Before adverting to the evidence of plaintif’s side, let us see the admitted facts in the present suit. They are that the vendor of defendants by name Yasani Lakshmi @ Boda Lakshmi is granddaughter of Boda Kotilingam. It is another admitted fact that one Dontaraju Venkata Apparao, s/o Dontaraju Venkata

Krishna Murthy filed L.G.C.No.76/1990 on the file of Land

Grabbing Tribunal, Hyderabad by showing 29 respondents as land grabbers, sought the relief of declaration and for their eviction. In the said L.G.C.No.76/1990, the defendants 1 and 2 herein referred as respondents 26 and 27 therein, similarly the vendor of the defendants Yasani Lakshmi referred as 2nd respondent in L.G.C.No.76/1990. It is another admitted fact that the said L.G.C.No.76/1990 was allowed on 18-7-1994 declaring the respondents 2, 26 and 27(Defendants 1 and 2 herein and their vendor) along with some other respondents as land grabbers and directed them to deliver vacant possession of the schedule property within two months from the date of order, failing which, the R.D.O., Narasaraopet shall deliver vacant possession of the schedule property to the applicant(Dontaraju

Venkata Apparao). It is another admitted fact that aggrieved by the said decree and judgment in L.G.C.No.76/1990, Yasani 28O.S.370/2014

Lakshmi and her husband Yasani Narasimhulu(vendor of defendants) filed writ petition No.21393/1994 on the file of

Hon’ble High Court of A.P., seeking writ of certiorari calling for the

records in the L.G.C.No.76/1990 and to quash the same by holding the impugned judgment as illegal. However the said writ petition was dismissed on 16-9-1998. It is another admitted fact that the defendants herein as plaintifs got filed O.S.222/2006 on the file of Principal Junior Civil Judge, Narasaraopet against the vendors of the plaintif herein i.e., Shaik Meera Vali, Bolla Brahma

Naidu and Shaik Showkath Ali and Yasani Lakshmi(vendor of the defendants herein), sought for the relief of declaration and recovery of possession for their property got purchased from

Yasani Lakshmi under the registered sale deeds of the year 1989.

The said suit was decreed exparte on 20-8-2010. In pursuance of the said decree and judgment in O.S.222/2006, the defendants herein who are the plaintifs therein got filed E.P.92/2011 under

Order 21 Rule 35 of CPC for delivery of the schedule property in

O.S.222/2006.

32.Now, let us see the evidence of plaintif herein as

P.W.1. The chief affidavit of P.W.1 is nothing but reiteration of the contents of the plaint. Through this witness, 13 documents were got exhibited initially in his first spell of his chief examination.

Out of them, Ex.A13 is the title deed of the plaintif dt.16-1-2007 executed by Sayani Anand Babu being the General Power of

Attorney of Shaik Meera Vali and two others. It is the original sale deed of the plaintif wherein the schedule referred as 29O.S.370/2014 property in an extent of 196.84 sq.yds., situated in

T.S.No.1579/1, Block No.2/27 at the nearest door No.13-2-137/14 bearing Plot No.19’s northern part. In this document, the title of the plaintif’s vendor referred as the registered document dt.25-11-2006 which is an agreement of sale coupled with

General Power of Attorney executed by Shaik Meera Vali and two others in favour of Sayani Anand Babu. Ex.A1 is the link document of Ex.A13. It is nothing but the certified copy of G.P.A., dt.25-11-2006 executed by Shaik Meera Vali and two others in favour of Sayani Anand Babu.

33.Now, let us examine the schedule of Ex.A1 which is a link document of Ex.A13. In this document, the executants referred their title to their property acquired by them under a registered sale deed dt.6-5-2002 for an extent of Ac.5.38 cents executed by Dontaraju Venkata Apparao and others. The property covered under Ex.A1 is for the plots 19, 20, 28 and 29 and the extent covered under the said document is 998 sq.yds., in T.S.No.1579/1 of Narasaraopet municipality. On perusal of the contents of the said document reveals that the executants though executed the said document by giving power of attorney to their agent Sayani Anand Babu, the possession of the property was not given. It is an unpossessory agreement of sale coupled with G.P.A.

34.Now, let us see the document under Ex.A2 which is a certified copy of registered sale deed dt.6-5-2002 vide 30O.S.370/2014

Doc.No.5968/06 executed by Dontaraju Venkata Apparao and others in favour of Shaik Meera Vali and two others and it is nothing but the link document of Ex.A1. The schedule covered under the said document is for an extent of Ac.5.38 cents covered by T.S.No.1579/1 and S.No.227 of Narasaraopet municipality wherein the vendors referred their title to the said property covered under the document dt.9-6-1940 when their paternal grandmother and father purchased the property under two registered sale deeds from Peda Peri Reddy vide

Docs.No.1668/40 and 1669/40 for the property which was mistakenly referred as property in T.S.No.1549/1 which was rectified by way of rectification deeds dt.23-4-1984 and after the death of their father Dontaraju Krishna Murthy as intestate, they got filed L.G.C.No.76/1990 which was decreed in their favour on 18-7-1994 and it was confirmed by the Hon’ble High Court in its decree dt.16-9-1998 and the land grabbers as per the directions of the Special court vacated the schedule property and the vendors who were in possession of the property delivered the same to their vendees under Ex.A2. On perusal of this document shows that though the document was executed on 6-5-2002, its registration was pending and it was completed in the year 2006.

So, the documents that are referred under Ex.A2 as the title of the vendors are of the year 1940. They are nothing but Exs.A5 and A6. Both the documents are of the year 1940 dt.9-6-1940 executed by one Kakumanu Peda Peri Reddy in favour of

Dontaraju Krishna Murthy for an extent of Ac.2.47 cents and in 31O.S.370/2014 favour of D.Veeramma for an extent of Ac.3.00 cents and in all

Ac.5.47 cents covered by T.S.No.1579/1. As per the case of the plaintif, the flow of title to their vendor’s vendor is from one

Boda Kotilingam who initially purchased the property from

Kolalapudi Pitchamma in the year 1907.

35.Ex.A3 is the certified copy of the sale deed dt.29-6-1907 executed by Kolalapudi Pitchamma in favour of

Boda Kotilingam and his wife Manchamma and the schedule covered under the said document is Ac.10.94 cents and after the death of Boda Kotilingam, the property covered under Ex.A3 was sold away by his wife Manchamma and daughter Swarna

Durgamba under two registered sale deeds dt.9-2-1930. Here the dispute pertaining to the property covered under Ex.A4 which is the registered sale deed executed by Boda

Manchamma and Swarna Durgamba in favour of Kakumanu Peda

Peri Reddy for an extent of Ac.5.47 cents towards north to the total extent of Ac.10.94 cents. The remaining Ac.5.47 cents were purchased by one A.Veeraiah under another sale deed dt.9-2-1930 which is not relevant to the present matter in issue.

So, Exs.A3 and A4 are the link documents pertaining to the property of plaintif’s vendor’s vendor’s vendor title.

36.Now, let us see the case of the plaintif, right from the beginning he pleaded that his vendor’s right and title was already decided in L.G.C.No.76/1990 dt.18-7-1994 before Hon’ble

Land Grabbing Tribunal, so, the same is binding not only on the 32O.S.370/2014 plaintif but also on the defendants who are the respondents in the said land grabbing case. In order to substantiate the said contention, the plaintif also got exhibited Ex.A7 which is the decree and judgment in L.G.C.No.76/1990 and it is a material and crucial document on behalf of the plaintif who concentrated his entire arguments on the said document by referring the various findings of the Special court on the right and title of

Dontaraju Venkata Apparao, s/o Krishna Murthy and his family basing on the documents that were produced before the Special court. Since the decree and judgment in L.G.C.No.76/1990 is a verdict before a Special court constituted under the provisions of

Land grabbing(protection)Act, 1982, the same is certainly binding on the plaintif and defendants as the same pertaining to the total extent of Ac.10.94 cents in T.S.No.1579/1 wherein the present plaint schedule is a part of the property. Admittedly as could be seen from the respective contentions coupled with the decree and judgment under Ex.A7, the Hon’ble Special court in its discussion for Issue No.1 i.e., whether the petitioner(Dontaraju Venkata Apparao) is the owner of the petition schedule property ? (Ac.10.94 cents in T.S.No.1579/1), the said issue was answered positively in favour of the petitioner therein given a finding that “the applicant and his brothers (Dontaraju Venkata Apparao and his brothers) are the owners of the schedule property and the rival claim set up by the respondentsmoreparticularly2ndrespondent(Yasani

Lakshmi/vendor of defendants 1 and 2) is not valid. So, the 33O.S.370/2014 decision of the Special court in L.G.C.No.76/1990 dt.18-7-1994, made the plaintif herein to canvas before this court that the title of Dontaraju Venkata Apparao and his brothers were already declared as absolute owners of the total extent of Ac.10.94 cents situated in T.S.No.1579/1 of Narasaraopet municipality entitled the plaintif to claim his right and title over the present plaint schedule which is a part of plot No.19 comprising 196.94 sq.yds., is his exclusive property.

37.Here, the plaintif also got exhibited the order copy in writ petition No.21393/94 dt.16-9-1998 when prefererd by Yasani

Lakshmi and her husband against the decree and judgment in

L.G.C.No.76/1990 which was disallowed by confirming the decree and judgment in L.G.C.No.76/1990 on the file of Hon’ble High

Court of A.P., on 16-9-1998. So, as per the contention of the plaintif when the Hon’ble High Court has confirmed the decree and judgment in L.G.C.No.76/1990 what else is required to conclude the issue with regard to the right and title of the plaintif over the present disputed schedule which is only a part of plot No.19 said to have been a plot laid by the vendors of plaintif in an approved layout affirmed by the municipality of

Narasaraopet. But, the contention of the plaintif on the said aspect is absolutely not probable and sustainable. Here, the plaintif who got filed present suit contending that he purchased the present plaint schedule property by virtue of the registered sale deed of the year 2007 from one Sayani Anand Babu,

G.P.A.holder of Shaik Meera Vali and others. But, as could be 34O.S.370/2014 seen from the decree and judgment in L.G.C.No.76/1990, the

Hon’ble Land Grabbing Tribunal declared the right and title of

Dontaraju Venkata Apparao and his brothers over the entire extent of Ac.10.94 cents shown as schedule in the said

L.G.C.No.76/1990 as a vacant site laid as house plots, is the absolute property of those persons. Here it is also very much relevant to refer the finding of the said L.G.C.No.76/1990 when answered the issue No.2 with regard to possession of the said schedule property of Ac.10.94 cents in T.S.No.1579/1. In Ex.A7 at page No.30, the Hon’ble Special court in its finding in Issue

No.4, given the result as follows: “In the result, in view of our findings under Issue Nos.1 to 4 we hold that respondents 1 to 20, 23 and 25 to 27 as land grabbers and direct them to deliver vacant possession of the schedule property within two months from today, failing which, the R.D.O., Narasaraopet shall deliver vacant possession of the schedule property to the applicant.”

Here, the respondents 26 and 27 in L.G.C.No.76/1990 are none other than the defendants 1 and 2 herein. So, as per the observation by the Hon’ble Special court in L.G.C.No.76/1990, it is manifest that the possession of the property was with the defendants 1 and 2 herein as respondents 26 and 27 therein along with other respondents. In this context, it is very much relevant to refer the contention of the plaintif coupled with the argument of counsel for the plaintif. As could be seen from the documents that were exhibited by the plaintif on his behalf particularly Ex.A2 which is the registered sale deed dt.6-5-2002 35O.S.370/2014 said to have been executed by Dontaraju Venkata Apparao and others in favour of Shaik Meera Vali and two others, they referred the disposal of L.G.C.No.76/1990 as well as writ petition before

Hon’ble High Court confirming the decree and judgment in

L.G.C.No.76/1990. Added to that, the respondents (land grabbers in L.G.C.No.76/1990) delivered possession of the property to the vendors under Ex.A2. Except the said recitals, there are no other particulars in the said document with reference to the date of delivery or the mode of delivery to the vendor’s vendor of plaintif under Ex.A2 in order to confirm the delivery of possession of the property to Dontaraju Venkata

Apparao and others after the disposal of L.G.C.No.76/1990. But, quite contrary to the recitals covered under Ex.A2, the argument of the counsel for the plaintif including the written arguments went on stating that the property covered under the present plaint schedule property as well as the property covered under the schedule in O.S.372/14 are not under encroachment and the said property had been in possession and enjoyment of

Dontaraju Venkata Apparao and his brothers. So, the question of handing over the possession of property by the vendor’s vendor of plaintif does not arise. Absolutely, such an argument on behalf of the plaintif is unworthy of credence in view of the findings in Issue No.4 at page No.30 of Ex.A7 besides the recitals covered under Ex.A2.

38.The plaintif’s vendor’s vendor themselves got noted in Ex.A2 that the respondents in L.G.C.No.76/1990 handed over 36O.S.370/2014 the possession of the property to them, then how the contention of plaintif contrary to the said recitals is sustainable to believe his version. In this context, it is also relevant to refer the cross examination of plaintif at one point of time. During the cross examination, P.W.1 stated that Yasani Lakshmi and her husband delivered possession to the revenue authority, but he does not know about the proceedings of the revenue authority to that efect. His statement also shows that Yasani Lakshmi and her husband after the orders of the Hon’ble High Court delivered possession to Venkatappaiah and there were no proceedings from revenue authority. So, the variance in the evidence of P.W.1 further shows the conflict in his own evidence with regard to the factum of delivery of possession of the property by the respondents in L.G.C.No.76/1990 to the petitioner therein.

However the cross examination of P.W.1 further went on showing that the person Yasani Lakshmi and her husband and their vendees delivered possession to Venkatappaiah and it was in the year 1999. So, as per the case of the plaintif, the possession was delivered to Dontaraju Venkata Apparao in the year 1999 i.e., after the disposal of the writ petition before the Hon’ble High

Court. When the own evidence of P.W.1 in his cross examination

before this court shows that the possession was delivered to

Dontaraju Venkata Apparao in the year 1999 which is an improved fact in the evidence of plaintif contrary to his pleadings, how the contention of plaintif by way of his arguments disputing the said factum is sustainable to consider 37O.S.370/2014 the bonafides in his contention. The entire arguments of the counsel for plaintif reiterated the said fact by referring his argument that the possession of the property is well with the petitioner in L.G.C.No.76/1990 and the alleged encroachment is only with reference to part of the property covered by the total extent of Ac.10.94 cents and absolutely there is no bar with regard to the possession of the present property in dispute i.e., part of plot No.19 covered by T.S.No.1579/1. Absolutely the said version of plaintif has no legs to stand in view of their own pleadings and documents with the recitals which are clearly and clinchingly shows that the respondents particularly the defendants 1 and 2 herein as respondents 26 and 27 in

L.G.C.No.76/1990 therein are in possession of the property as land grabbers was affirmed by the said court in

L.G.C.No.76/1990, but contrary to the said findings, now the argument of the plaintif was improved as if the said property is free from any encroachment which is absolutely improbable and palpably false.

39.Now, let us see the other contention of the plaintif with reference to the passing of title to the plaintif in the year 2007. Admittedly since 1907 the right and title of Boda

Kotilingam and therefrom Kakumanu Peda Peri Reddy to

Dontaraju Krishna Murthy and from him to his sons Venkata

Apparao and others for the property in T.S.No.1579/1 was declared in L.G.C.No.76/1990 before Land Grabbing Tribunal as 38O.S.370/2014 their own property. So, absolutely, there is no dispute with regard to passing of title from Boda Kotilingam to Dontaraju

Venkata Apparao and his brothers as found in the findings of the said court in L.G.C.No.76/1990. But, what about the other sale deeds that were brought into existence in between 2002 to 2007 in order to show the passing of title coupled with possession from the family of Dontaraju to the vendors of plaintif, namely, Shaik

Meera Vali and two others. In Ex.A2, the sons of Dontaraju

Krishna Murthy conveyed the entire extent of Ac.5.47 cents to

Shaik Meera Vali and two others, absolutely the passing of title under the said document is not in dispute. However the delivery of possession of the property is still in dispute so far this court has not yet discussed the other evidence placed by the plaintif in order to prove the factum of delivery of possession of the property in between the vendors and vendees covered in Ex.A2.

Coming to the document under Ex.A1 is concerned, it is a certified copy of power of attorney dt.25-11-2006 when executed by Shaik Meera Vali and two others in favour of Sayani Anand

Babu for the property in an extent of 998 sq.yds., for four plot numbers i.e., 19, 20, 27 and 28, absolutely there are no particulars with regard to any plan for approval of layout or the proceedings from the concerned in order to lay plots in the schedule covered under Ex.A2. Similarly, there are no documents on behalf of the plaintif to show that his vendors laid plots for the property covered under Ex.A2 and the proceedings for the said layout in order to confirm the identity of the present 39O.S.370/2014 schedule as part of plot No.19. In this context, it is also relevant to refer the argument of the counsel for plaintif when wants to apprise before this court that the vendors of plaintif laid plots and it is an approved layout and the proceedings were issued by

Narasaraopet municipality. In order to substantiate his argument, he wants to consider the plan appended to the documents as the said approved plan, absolutely such an argument is unworthy of credence in order to prove the factum of approved layout as argued by the counsel for the plaintif.

The entire pleadings and evidence of P.W.1 are completely silent with regard to the factum of laying of plots under an approved layout as argued by the counsel for the plaintif. There is no whisper either in the pleadings or evidence of P.W.1 with regard to the date of layout or date of proceedings when they got obtained permission to lay plots in the total extent of Ac.5.47 cents purchased by Shaik Meera Vali and two others from the sons of Dontaraju Krishna Murthy. Not only that they not even whispered the total number of plots that were laid in the alleged approved layout plan. But, quite contrary to the evidence of

P.W.1 and the pleadings of the plaintif, a fact was newly introduced through the evidences of P.Ws.2 to 7 in their chief affidavit contending that there were 31 plots laid in the approved layout before Narasaraopet municipality. Even to prove the said factum, there is no material on behalf of the plaintif to conclude that it is an approved layout and there were proceedings before

Narasaraopet municipality for the property covered under Ex.A2 40O.S.370/2014 document. The argument from counsel for the plaintif by referring the plan appended to the documents has no authenticity and it is not an approved layout as argued by him.

Since the plaintif failed to place any material before this court to prove the factum of laying of plots in the property covered under

Ex.A2 as an approved layout, this court has to draw an adverse inference under the provisions of Section 114(g) of the Indian

Evidence Act that it is not an approved layout as contended by the plaintif, though improved through the evidences of P.Ws.2 to 7 and that was the reason, there is no material evidence on their behalf to prove the said factum. In order to prove their contention, no steps were taken even to summon the concerned authority. If at all any such approved layout was got laid by

Shaik Meera Vali and others as argued by the counsel for plaintif, they ought to have take steps to prove such contention by summoning the concerned from municipality of Narasaraopet and in absence made this court to draw an adverse inference that intentionally such steps were not taken to summon any one of the concerned from the municipality and if at all such steps were taken the same would goes against to the case of the plaintif. So, considering the material that was placed by the plaintif before this court, absolutely there is no such approval of layout as canvassed by the plaintif through P.Ws.2 to 7.

40.Now, it is relevant to refer the evidences of P.Ws.2 to

7. They are none other than the purchasers of some of the plots 41O.S.370/2014 which are said to be the adjacent plots to the property of plaintif. Their sale deeds were got marked through P.W.1 in his second spell as Exs.A15 to A20. The chief affidavits of P.Ws.2 to 5 are nothing but replica to one another. The evidence affidavit of P.W.2 was got filed contending that he is a third party to the proceedings, purchased plot No.4 in the year 2008 from one

K.Srinivasa Reddy who in turn purchased the property from Shaik

Meera Vali and others in the year 2006 under a registered sale deed. He and others constructed a compound wall for their properties and have been in possession and enjoyment of the same. The plaintif also purchased Ac.0.04 cents in plot No.19 and raised pillars and basement and have been in possession and enjoyment of the said property. This is another area where the evidence of plaintif had improved through P.Ws.2 to 7. The chief affidavits of all the witnesses improved with one factum that the property of the plaintif exists with pillars and basement which is not the case of plaintif at any point of time either in the plaint or in the schedule of the plaint. He did not refer any such construction of basement and pillars by the plaintif after he got purchased the plaint schedule property under Ex.A13. But, quite contrary to the case of the plaintif, the evidences of P.Ws.2 to 7 were improved as if the plaintif constructed basement by raising pillars which is an improved fact without any basis. The chief affidavit of P.W.2 was also introduced a new fact with reference to Kuraganti Venkateswarlu and Returi Prabhakararao who filed

P.L.C.13/2013 before Mandal Legal Service Committee, 42O.S.370/2014

Narasaraopet against P.W.2 and 11 others falsely claiming that they purchased the property from Boda Lakshmi and ultimately the said P.L.C was closed with a finding that they have no right and title over the said property. This witness was thoroughly cross examined by the counsel for defendants. During the cross examination, this witness stated the total number of 31 plots in the approved layout by the municipality in the year 2006.

However there is no such material on behalf of the plaintif which was already concluded by this court in the above referred paragraph. The cross examination of P.W.2 at one point of time shows that he does not know his plot and its surrounding plots, what else is required to conclude that this witness is a chance witness and his evidence is absolutely not helpful to the case of the plaintif. Similarly, the cross examination of P.W.2 at another point of time shows that he does not know the particulars of the

P.L.C as referred in chief examination by whom and against whom, the same was filed and the relief sought in the said application. So, considering the cross examination of P.W.2 on the above referred material facts, absolutely this court has no hesitation to conclude that he is a chance witness and his evidence is no way helpful to the case of the plaintif either to prove the factum of laying out plots in an approved layout in the year 2006 before municipality by the vendors of the plaintif and the possession and enjoyment of the plaintif herein over the present schedule property. The next witness is P.W.3 who filed his chief affidavit with the contents which are similar to that of 43O.S.370/2014

P.W.2, except the variance in plot No.7, this witness was tendered for cross examination, stated in his evidence that the plots of the plaintif and others are in private layouts. It is another area where the case of the plaintif was completely fumbled when compared with the evidence of P.Ws.1 and 2, both the witnesses in their evidence when categorically stated that the plots are in alleged approved layout before municipality without any basis and without producing any scrap of paper when tried to canvas before this court that those plots are in approved layout when laid by the vendors of the plaintif, their own evidence through P.W.3 completely ruled out their contention. If really the said property is in approved layout and the plots were laid as canvased by P.Ws.1 and 2, the same ought to have found in the evidence of P.W.3. But, in the absence of any such material through P.W.3, his evidence does not show any material which is just and appropriate to consider the case of the plaintif. This witness similarly in his cross examination stated that he does not know about the P.L.C., as referred in his chief affidavit. So, absolutely the evidence of P.W.3 is similarly not material in order to discharge the burden of the plaintif to show the passing of title over the plaint schedule property from the vendors of plaintif in between 2002 to 2006.

41.The 4th witness is P.W.4, he similarly filed his chief affidavit reiterating the contents of the affidavits of P.Ws.2 and 3.

According to this witness, he purchased the plot No.12. Though the contents of the chief affidavit referred as plot No.12, in his 44O.S.370/2014 cross examination at one point of time the same shows as plot

No.9. The reasons best known to the witness, the variance in his evidence when compared his chief examination with the cross examination remains unanswered. The cross examination of this witness similarly contrary to his chief affidavit when stated that he does not know his plot and its surrounding plots. Similarly, he does not know the particulars of the P.L.C., as referred in his chief examination. So, what else is required to conclude that all these witness are introduced by the plaintif to prove the factum of approved layout consisting 31 plots in a layout plan before the municipality wherein this witness also got purchased one of the plot which are all proved futile.

42.P.W.5 is another witness, similarly got filed his chief affidavit and according to this witness he got purchased plot

No.9. However, the cross examination of this witness is similar to that of the earlier witnesses. This witness similarly stated that he does not know his plot and his surrounding plots and he does not know the particulars of the P.L.C., as referred in his chief affidavit. So, the evidences of P.Ws.2 to 5 are completely ruled out the case of the plaintif which was introduced and improved to prove the alleged factum of approved layout comprises 31 plots and the possession of the plaintif over the plaint schedule property with a basement and pillars.

43.P.Ws.6 and 7 are also the third parties to the proceedings. The chief affidavits of these witnesses are similar 45O.S.370/2014 to one another. According to the evidence of P.W.6 he along with several others also purchased the properties from Shaik Meera

Vali and two others and got constructed houses and have been residing therein. He has been residing in the said property since from the date of purchase. During the cross examination, this witness stated that the schedule property is situated in

Rahamathullah nagar. As could be seen from his evidence shows there is a plan for the plot No.19 purchased by the plaintif.

However he was not present when the said plots were purchased by the plaintifs. The entire evidence of P.W.6 was disputed by the defendants by putting suggestions that the property is not situated in Rahamathullah nagar and he being the friend of plaintif deposing false to help him which are all denied by P.W.6.

Though this witness stated that the purchase of property by his wife in the year 2013 and construction of a house in the said property, absolutely there is no material in order to prove the said fact. Here the contention of the plaintif is that the plaint schedule property is located in an approved layout laid in the year 2006 before the municipality, Narasaraopet wherein the plaintif purchased part of plot No.19 which is an extent of 196.94 sq.yds. In order to prove the said factum, though the plaintif not ventured either to examine any one of his vendors to prove the passing of title to them from their vendees i.e., sons of

Dontaraju Krishna Murthy after the disposal of L.G.C.No.76/1990 and getting an approval to lay plots in an approved layout, the evidence of P.Ws.2 to 7 who are said to be the third parties to the 46O.S.370/2014 proceedings was alone introduced in order to prove his right and title over the disputed property. However the evidence of those witnesses has completely fumbled in order to prove the fact which was introduced subsequently by the plaintif contrary to his pleadings. The chief affidavit of P.W.7 is similar to that of the evidence of P.W.6. According to this witness, he got purchased the property in plot No.18. This witness was similarly tendered for cross examination wherein stated the total number of plots are 31 in an approved layout in the year 2006 by the municipality. But, in order to prove the said factum, there is no material on behalf of the plaintif and thereby results that the said fact is unproved. During the cross examination, this witness stated that he cannot give the boundaries of property of the plaintif in plot No.19. But, as per his version, plaintif is owner of plot No.19. If at all P.W.7 is the owner of the plot No.18 he ought to have furnish the boundaries to the property of plaintif which is nothing but plot No.19. This witness has similarly stated in his cross examination that he does not know the particulars of P.L.C., as referred in his chief affidavit . His evidence is similar to that of the remaining witnesses who unable to state the material particulars which are relevant to prove the right and title of plaintif over the present plaint schedule property which is northern part of plot No.19 in an approved layout as canvased by the plaintif. So, the oral evidence on behalf of the plaintif particularly P.Ws.2 to 7 is absolutely not relevant in order to 47O.S.370/2014 prove the passing of title coupled with possession to the plaintif from his vendor’s vendors in between 2002 to 2006.

44.Here the plaintif on whom the burden lies heavily even as per the observation by their lordships in the above referred case law, ought to have placed relevant and material evidence to discharge the same. However, the plaintif except examining himself as P.W.1 did not adduce any other evidence particularly any one of his vendors to prove the contents of the documents under Exs.A2 and A13. However, let us see the cross examination of P.W.1 in further, whether shows any material which is contrary to the case of the defendants. This witness was thoroughly cross examined by the counsel for defendants, wherein he admitted that the defendants purchased the schedule property and other property before filing of the L.G.C., he also admitted that Yasani Lakshmi laid plots of an extent of

Ac.5.47 cents and sold the same which was purchased by most of the employees . What else is required to consider the case of the defendants with regard to their purchase of plaint schedule property and other property in the year 1989 which is much

before filing of the L.G.C.No.76/1990. Though the result of

L.G.C.No.76/1990 is otherwise to the case of the defendants absolutely the purchase of the property by the defendants 1 and 2 which is present schedule and other property before filing of the L.G.C., is not in dispute and it is well within the knowledge of the plaintif. Similarly, laying of plots in the said Ac.5.47 cents by Yasani Lakshmi (vendor of defendants) and selling away those 48O.S.370/2014 plots to the employees as contended by the defendants are also within the knowledge of the plaintif and knowing fully well he got purchased the property in pending litigation in the year 2007.

In this context, it is also relevant to refer the arguments of the counsel for plaintif coupled with the cross examination of 1st defendant as D.W.1. According to the plaintif, the property that was got purchased by the defendants under Exs.A11 and A12 in the year 1989 on 20-3-1989 when executed by Yasani Lakshmi granddaughter of Boda Kotilingam in favour of the defendants 1 and 2 is not the present plaint schedule property and there is an identity dispute. The written arguments of the plaintif went on stating that the property of defendants is not identifiable and their own documents do not show any plot numbers and the cross examination of D.W.1 at one point of time stated that upto 2002, the same is an agricultural land and after the said property was purchased by Meera Vali and others, it was laid into plots wherein the plaintif purchased the property in the year 2006.

By referring the relevant portion of evidence in the cross examination of D.W.1, the counsel for plaintif wants to take advantage in order to prove the factum of laying of plots by

Meera Vali and others after they purchased the property in the year 2002 and he wants to show suspicion in the identity of defendants’ property which was covered under Exs.A11 and A12, but absolutely such an argument is not worthy to consider the case of the plaintif on whom the burden lies not only to establish the right, title and deliver of possession to the plaintif 49O.S.370/2014 as well as his vendors in order to prove his right for the relief of declaration. It is settled proposition of law that any amount of weakness in the case of defendants would not helpful to the case of plaintif in order to discharge his burden in his prayer of declaration. When the plaintif himself admitted in his cross examination about his knowledge that the plaint schedule property was purchased by the defendants along with other property before filing of L.G.C and the vendor of defendants laid plots in Ac.5.47 cents and sold the same to the purchasers who are most of the employees, what else is required to disbelieve the version of plaintif that his vendors laid plots in 2006. The evidence of P.W.1 completely ruled out the case of the plaintif to believe his version i.e., plots that were referred by the plaintif in his pleadings as well as in his documents pertaining to approved layout. When the plaintif himself as P.W.1 admitted the laying of plots by the vendor of defendants and sold those plots to the third parties much before filing of L.G.C.No.76/1990, how the statement of D.W.1 at a stray in his cross examination would be helpful to believe the version of the plaintif in his improved arguments. In this context, it is also relevant to refer the argument of the counsel for defendants while drawing the attention of this court to the schedule appended to

L.G.C.No.76/1990 which was got marked as Ex.A7. The schedule in L.G.C.No.76/1990 referred the classification of land as dry land developed as house sites. This further supports the case of the defendants to believe their version about laying of plots by 50O.S.370/2014 their vendor by the time they got purchased the property in the year 1989. So, the contention of the plaintif in order to prove the factum of laying out of plots that too in an approved layout

before the municipality in the year 2006 after the vendor of the

plaintif purchased the property in the year 2002 is not at all proved.

45.Now, let us see the other objections that were raised by counsel for the defendants during the submission of their arguments, though the decree and judgment in L.G.C.No.76/1990 dt.18-7-1994 is available in record wherein the rights of the parties with regard to their title to the property covered in

T.S.1579/1 to an extent of Ac.5.47 cents was already determined by a competent special court having civil court jurisdiction, their contention going on stating that the said judgment is not binding on them. The reason for such a contention is that what are the material documents that are available to them were not placed by them in the said L.G.C., inadvertently. So, there is no full- fledged discussion with regard to their documents was done in the said L.G.C., and for that reason, the said judgment and decree is not binding on them. The counsel for defendants again in his submission reiterated the similar objections which were also raised in L.G.C.No.76/1990 and answered by the said court in its discussion elaboratively. One of the points raised by the counsel for the defendants is that the earlier title deeds of plaintif’s vendor’s vendor shown the T.S.No. of the schedule as 51O.S.370/2014 1549 which was subsequently rectified as 1579, contrary to the contents found in their earlier title deeds. But, such an objection on the part of the defendants is absolutely unsustainable and not worthy of consideration since the said contention was already answered by the Special court in Ex.A7. At page No.19 in paragraph No.18, the same reads as follows: “I.A.2204/1985 in

O.S.181/1985 was filed to amend the T.S.No. Of the property in

the said suit to T.S.No.1579/1 from 1549/1. As per the orders dt.29-1-1988, the said application was allowed and the said order became final. The 1st respondent and others who were parties to the said proceedings have not chosen to challenge the same and in view of that it is not now open to the 1st respondent etc., to contend that the schedule property was not the property purchased under Exs.A1 and A2. So, the Hon’ble Land Grabbing

Tribunal already answered the query which was pointed out by the counsel for the defendants in the present suit on hand. The other objection that was raised by the counsel for the defendants is that though the special court declared the respondents as land grabbers, the criminal case that was registered basing on the observation of the L.G.C.No.76/1990 as C.C.No.1/1998 on the file of the Principal Junior Civil Judge, Guntur was ended in acquittal. Absolutely, the calendar and judgment in C.C.1/1998 would not helpful to the case of the defendants to show any bonafides on their part contrary to the title which was already decided and declared in favour of the petitioners in

L.G.C.No.76/1990. It is settled ratio of law that the judgments in 52O.S.370/2014 criminal case are not binding on the proceedings of the civil courts. So, it would not show any material in favour of the defendants herein to canvas before this court that the respondents are not land grabbers as declared in

L.G.C.No.76/1990. So, such an argument on behalf of the defendants is absolutely improbable and unsustainable.

46.Now, coming to the other objection that was raised by the defendants at the time of their arguments with regard to the filing of L.G.C.No.76/1990 by one of the sons of Dontaraju

Krishna Murthy how entitle the other legal heirs to canvas themselves as absolute owners to the said property in order to execute registered sale deed under Ex.A2 in favour of Meera Vali and others. The contention of the defendants by raising such an argument is also similarly not worthy of credence and the findings in L.G.C.No.76/1990 while allowing the prayer not only on behalf of the petitioner but also the other legal heirs of

Krishna Murthy represented by the petitioner as kartha of their joint family itself enough to conclude that not only Dontaraju

Venkata Apparao but also the other sons of Venkata Krishna

Murthy were also declared as absolute owners of the schedule property covered in L.G.C.No.76/1990. So, there is no force in the contention of the defendants for the points that were raised by them through their counsel in their arguments. So, in view of the admissions in the cross examination of P.W.1 particularly with regard to fact of laying out of plots by the vendor of defendants much prior to the filing of L.G.C.No.76/1990, completely ruled out 53O.S.370/2014 the case of the plaintif to believe his version with regard to the alleged laying of plots by his vendors after they got purchased the property in the year 2002 by way of execution and registered the document in the year 2006 by paying the necessary stamp duty and penalty and obtained delivery of property. Here the plaintif in order to prove his title, except examining himself as

P.W.1, did not adduce any other evidence and not even tried to summon any one of the signatories on his behalf even to prove the contents of Exs.A1 and A2 by the sons of Dontaraju Krishna

Murthy in favour of Meera Vali and others who in turn executed

G.P.A., in favour of Sayani Anand Babu in order to transfer the property in favour of the plaintif herein by way of plots in an approved layout. The arguments on behalf of the counsel for the plaintif by concentrating over the finding in L.G.C.No.76/1990 when declared the sons of Dontaraju Venkata Krishna Murthy as the absolute owner of the schedule therein would not helpful to the case of the plaintif herein to canvas before this court that his right and title was already declared by a competent civil court in order to approach this court for the similar relief as prayed for. Mere marking the link documents of Ex.A13 would not be helpful to the case of the plaintif to prove its contents. In this context it is relevant to refer the citation reported in AIR 1971 SC 1865 between Sait Tarajee Khimchand and Others vs. Yelamarti Satyam and Others wherein the observation by their lordships of Hon’ble Apex Court that “mere marking of a document as an exhibit does not dispense with the proof of 54O.S.370/2014 document”. The above observation when applied to the present case on hand, absolutely the contents of the documents under

Exs.A1, A2 and A13 are not proved.

47.In view of the above discussion as the evidence of

P.W.1 is itself not enough to discharge the burden of the plaintif to prove his contention that he is absolute owner of the plaint schedule property by virtue of his sale deed under Ex.A13 for the property which is part of plot No.19 in an alleged approved layout in T.S.No.1579/1. Accordingly, this issue is answered against the plaintif.

Issue No.2:

48.The further contention of the plaintif basing on the evidence of P.Ws.1 to 7 is that since from the date of purchase of the plaint schedule property, he has been in peaceful possession and enjoyment of the plaint schedule property. In this context, it is relevant to refer one of the citations submitted by the counsel for plaintif reported in 2017 (2) ALT 468 between P.Jhon Britto vs. Potluri Srinivas Chowdary and another wherein the observation by their lordships of Hon’ble High Court of A.P., is that “since the property is a vacant property, which is incapable of being physically possessed all the time, then the principle to be applied is ‘possession follows title’.” By submitting this observation, counsel for plaintif wants to draw the attention of this court that the sale deed of plaintif under Ex.A13 is itself enough to prove the possession of the plaint schedule property 55O.S.370/2014 which is only a vacant site. By submitting the above proposition of law, the counsel for plaintif wants to draw the attention of this court with a submission that since the property is a vacant site there should not be any separate document to prove the possession of plaintif over the plaint schedule property. But absolutely the proposition of law submitted by the counsel for the plaintif in the above case law is not applicable to the present case on hand. Here is the own document of the plaintif i.e.,

Ex.A7 which is a judgment in L.G.C.No.76/1990 shows that the conclusion of possession of the total extent of Ac.5.47 cents situated in T.S.No.1579/1 had with the possession and enjoyment of the respondents therein (the defendants 1 and 2 herein are the respondents 26 and 27 therein). Even as per the document of the plaintif under Ex.A2 after the disposal of L.G.C., the vendors of the said document secured possession of the property. Even as per the cross examination of P.W.1, the possession of the property was delivered by the respondents to the petitioner in L.G.C.No.76/1990 in the year 1999. But, in order to prove the said contention, there is no scrap of paper

before this court to believe the version of the plaintif. In those

circumstances, the proposition of law as referred by the counsel for plaintif is absolutely not applicable to the case on hand. Not only that the evidences of P.Ws.2 to 7 in one voice stated the nature of the plaint schedule property as a vacant plot where the plaintif constructed basement and raised pillars which are all completely absent in the plaint schedule. If at all the evidence 56O.S.370/2014 of P.Ws.2 to 7 is trustworthy, the plaintif ought to have produced relevant material to show the plan for the construction of structure in his site in accordance with law. But, the plaintif himself not whispered in his chief examination about the commencement of any construction in the plaint schedule though improved the same in his cross examination. The evidence of P.W.1 is not corroborating with the evidences of

P.Ws.2 to 7 on that aspect. In those circumstances, how the contention of the plaintif in order to show that the plaint schedule is a vacant site is appropriate to apply the analogy laid down by their lordships in the above case.

49.Let us examine the cross examination of defendants side witnesses with regard to the factum of possession of property contrary to the pleadings of the plaintif. When the 1st defendant was cross examined as D.W.1, counsel for plaintif wants to elicit through the witness by suggesting that the huts raised by the other purchasers are removed by police immediately after passing of the judgment in L.G.C.No.76/1990.

This is not the version of the plaintif at any point of time either in his pleadings or in his evidence as P.W.1. The own evidence of

P.W.1 in his cross examination shows the variations with regard to the delivery of possession. At one point of time, he stated that the property was delivered by the revenue people and by changing the said version, he added that the respondents themselves handed over the possession after the disposal of

L.G.C.No.76/1990. In this context, it is relevant to refer the 57O.S.370/2014 argument of the defendants on the said aspect by pointing out the pending litigation to believe the version of the plaintif side witnesses, when C.C.1/1998 (the judgment was got marked as

Ex.B6 on behalf of the defendants) was disposed of on 31-1-2005, which was registered basing on the complaint of the

L.G.C.court, against the vendors of defendants, how it would be appropriate to consider the contention of the plaintif that respondents in L.G.C., themselves got delivered the property to the petitioner therein during the pendency of criminal case. The submission of the defendants is just and convincing, when there is pending litigation one cannot expect the delivery of possession by the respondents who are accused in a criminal case. If really the respondents in L.G.C.No.76/1990 delivered possession of the property to the petitioners therein, immediately after the disposal of L.G.C., it must be born on record and in absence it could not be believable to any ordinary prudent man to act under those circumstances. In the absence of any such material on behalf of the plaintif, which is contrary to his pleadings and the recitals under Ex.A2, made this court to conclude that such a contention on behalf of the plaintif is absolutely not worthy and probable and thereby the said fact of delivery of possession of the property in L.G.c.No.76/1990 to the petitioner therein is similarly not proved.

50.Now, it is relevant to refer the contention of the defendants with regard to their suit in O.S.222/2006 on the file of

Principal Junior Civil Judge, Narasraopet when got filed the said

58O.S.370/2014 suit against the vendors of plaintif and the vendor of defendants seeking the relief of declaration and for recovery of possession.

Ex.A9 is the relevant document to prove the said contention. In

Ex.A9, there is copy of plaint, written statement, order in

I.A.813/2006 and certified copy of decree and judgment in

O.S.222/2006 were got marked. As could be seen from the said

documents show that the vendors of plaintif i.e., Shaik Meera

Vali and two others filed their written statement and contested the matter initially. Their contention in their written statement at page No.2, paragraph No.7 reads as follows: “The 4th defendant and Yasani Narasimhulu executed several deeds in respect of land i.e., an extent of Ac.5.47 cents of land to number of people including the plaintif herein. All of them removed the boundary stones and grabbed the said land. This is another area where the own document of plaintif is contrary to his submission.

According to the arguments of counsel for the plaintif, the entire land in an extent of Ac.5.47 cents i.e., schedule in

L.G.C.No.76/1990 is not in encroachment. Only part of the property is under encroachment, excluding the schedule in this suit. So, the argument is completely fumbled in view of their own pleadings i.e., pleadings of plaintif’s vendor in

O.S.222/2006. The other document is order in I.A.813/2006 in

O.S.222/2006 when pronounced on merits by dismissing the

prayer of the defendants herein for their relief of temporary injunction, restraining the respondents therein from executing any sale deeds in favour of third parties in its order 59O.S.370/2014 dt.29-12-2006. However, subsequently the defendants (vendors of plaintif) in the said suit were remained exparte and accordingly a judgment was pronounced in favour of the defendants herein as plaintifs therein by allowing their prayer for declaration and recovery of possession. Here, it is relevant to refer the contention of the defendants for their title covered under Exs.B1 and B2. Ex.B1 is a title deed of the 1st defendant dt.20-3-1989 when purchased property in an extent of 585 sq.yds., in T.S.No.1579/1, absolutely there is no reference about any plot number. The property of the 2nd defendant is covered under Ex.B2 dt.20-3-1989 to an extent of 195 sq.yds., which includes the present plaint schedule without reference of any plot number. The plaintif similarly got exhibited the said documents as Exs.A11 and A12 on his behalf. Here, both the documents are of the year 1989 which is prior to the decree and judgment in L.G.C.No.76/1990 as admitted by P.W.1. According to the version of defendants in their pleadings though they got knowledge about the filing of L.G.C.No.76/1990 in view of their residence at far places due to their employment, they could not pursue the said case and what are the material documents on their behalf were not able to present before the said court and as such the decree and judgment in L.G.C.No.76/1990 is not binding on them. Absolutely such a contention on their behalf is not sustainable since the decree and judgment in

L.G.C.No.76/1990 on the file of a competent special court having jurisdiction of a civil court. In this context, it is relevant to refer 60O.S.370/2014

Sec.9 of Land Grabbing (prohibition) Act, 1982 which reads as follows: “Special court to have the powers of the civil court and the court of Session:- Save as expressly provided in this Act, the provisions of the Code of Civil Procedure , 1908, the Andhra

Pradesh Civil Courts Act, 1972 and the Code of Criminal

Procedure , 1973, in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the

Special Courts and for the purposes of the provisions of the said enactments, Special court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.” So, the above referred provision made it clear that the judgment and decree on the file of the Special court have the power of civil court and shall be decreed to be a civil court and its verdict is binding on both parties to the proceedings in respect of the schedule thereunder.

The counsel for plaintif by way of his reply referred the judgment in L.G.C.No.76/1990 at the fag-end when referred number of applications got filed by the respondents therein to reopen the matter and to receive documents which are all dismissed with an elaborative discussion. So, the question of non-binding of the said judgment and decree to the defendants herein who are some of the respondents therein does not arise.

The argument of the plaintif on the said aspect is quite sustainable and the respondents who got sufficient opportunity 61O.S.370/2014 therein they got filed their documents along with appropriate applications at the fag-end, which were similarly discussed in the judgment in L.G.C.No.76/1990, dismissed when they were devoid of merits. However the vendor of the defendants aggrieved by the decree and judgment, preferred an appeal by way of writ petition under Ex.A8 similarly available with this court record in order to show that the proceedings in L.G.C.No.76/1990 attained finality and the same is binding on all the parties to the proceedings in L.G.C.No.76/1990. The defendants are completely debarred to take any rescue by submitting such an argument that their absence by that time when

L.G.C.No.76/1990 was going on, would not show any merits in their contention.

51.Now, it is relevant to refer the suit in O.S.222/2006 got filed by the defendants herein as plaintifs therein and obtained a decree and judgment in their favour under Ex.A9.

Absolutely the passing of decree in O.S.222/2006 is not in dispute. However, the argument of the counsel for plaintif went on stating that the same is a decree in nullity. Since the defendants by playing fraud and misrepresentation suppressed the factum of decree and judgment in L.G.C.No.76/1990, got filed the said suit in O.S.222/2006 which is absolutely non-est in the eye of law. The counsel for plaintif submitted number of citations reported in that context. They are: 2009 (1) ALT 74 between G.Vidaysagar Rao vs. District Collector wherein their lordships of Hon’ble High Court of A.P., in their observation held 62O.S.370/2014 that “it is well to remember that fraud vitiates all acts. Fraud is a false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor.” In another citation reported in 1994 SCC (1) between S.P.Chengalvaraya

Naidu vs. Jagannath wherein their lordships of Hon’ble High

Court of A.P., in their observation held that “fraud avoids all judicial acts, ecclesiastical or temporal observed chief justice

Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eye of law. Such a judgment and decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.” In another citation reported in 2011 (2) ALT 130 (D.B) Divisional Forest Officer, Eluru vs.

District Judge, West Godavari, Eluru and others wherein their

lordships of Hon’ble High Court of A.P., in their observation held that “the judgment or a decree obtained by playing fraud on court is a nullity and non est in the eye of law.” By submitting all these citations, counsel for plaintif wants to draw the attention of this court that the decree and judgment in O.S.222/2006 is a nullity and non est in the eye of law. The E.P proceedings in pursuance of the said decree and judgment got filed by the defendants herein as decree holders in E.P.92/2011, is similarly nullity and the delivery recorded in the said E.P. is only a paper 63O.S.370/2014 delivery and it does not binds the plaintif. The plaintif also got marked Ex.A10 which is the copy of execution petition in

E.P.92/2011 in O.S.222/2006 on the file of Principal Junior Civil

Judge, Narasaraopet. On the other hand, defendants in B-series

got exhibited the execution petition in E.P.92/2011 along with its schedule and docket proceedings as Ex.B4 and the delivery warrant along with delivery receipt as Ex.B5. The further argument of counsel for the plaintif shows that this court cannot consider the validity of decree and judgment besides the delivery recorded in E.P.92/2011 in view of the fraud and misrepresentation played by the plaintifs who are the defendants herein. This court is also agree with the argument submitted by the counsel for plaintif with regard to non- reference of earlier proceedings in L.G.C.No.76/1990 by the plaintifs in O.S.222/2006 is fatal to their claim. However when there is a decree and judgment passed by a competent civil court is available under Ex.A9 how the argument would be sustainable to treat the said document as nullity. The right recourse available to the plaintif is to sought for an appropriate relief to declare the said decree and judgment as null and void in view of the reasons as averred by the plaintif. In the absence of any such prayer though pleaded by the plaintif that would not suffice to consider the contention of the plaintif herein. The defendants who got exhibited the E.P proceedings in E.P 92/2011 under Ex.B4 and the delivery receipt under Ex.B5 contending that the properties covered under Exs.B1 and B2 were already 64O.S.370/2014 delivered to them physically in the said proceedings in

E.P.92/2011. The property of the plaintif herein is part of the

property covered under Ex.B2 belongs to the 2nd defendant. So, the question of possession of the plaint schedule property with the plaintif does not arise. The defendants besides examining the 1st defendant as D.W.1 also got examined two third parties to the proceedings as D.Ws.2 and 3 who are said to be the purchasers of some of the plots along with the defendants from

Yasani Lakshmi in the year 1985 and 1986 respectively. They also got examined one of the attestors to the delivery receipt under Ex.B5 as D.W.4. The counsel for plaintif who cross examined this witness at length started submitting the arguments that the cross examination of D.W.1 at one point of time shows that the property was delivered by the amin as per

Ex.B5 in the court premises, itself enough to conclude that the said delivery is only a paper delivery. Absolutely, the contention of plaintif on the said aspect is improbable in view of the proceedings in E.P.92/2011 wherein the docket proceedings reflects that the said court after recording the delivery terminated the E.P., that itself shows the execution proceedings in O.S.222/2006 was concluded after the property was delivered to the decree holders therein. In the absence of any steps on behalf of the plaintif to set aside the said decree in

O.S.222/2006 and not initiating any steps to challenge the

delivery recorded in E.P.92/2011, such an argument on behalf of the plaintif would not helpful to show any merits in his 65O.S.370/2014 contention. All the citations submitted by the counsel for plaintif are absolutely not in dispute. But, coming to the case on hand, they are not appropriate before the present court to declare the decree and judgment in O.S.222/2006 as non-est in the eye of law in the absence of any specific prayer on his behalf to that efect before the competent court.

52.Now, it is relevant to refer the cross examination of defendants side witnesses particularly with regard to the possession of the property, as already discussed in the above paragraph with regard to the suggestion that was put to the

D.W.1 about the delivery of possession to the police by the respondents in L.G.C.No.76/1990 after the disposal of L.G.C., which is contrary to the evidence of P.W.1. D.W.2 who is a third party to the proceedings got filed his chief affidavit contending the total property of Ac.10.94 cents including the present plaint schedule disposed by Yasani Lakshmi wherein the defendants purchased the property as covered under Exs.B1 and B2. This witness in his chief affidavit stated that he had also purchased one plot in an extent of Ac.0.04 cents under a registered sale deed dt.16-10-1986 for a valid consideration of Rs.5,000/-, ever since he has been in possession and enjoyment of the said property. This witness was thoroughly cross examined by the counsel for the plaintif wherein his signature on P.L.C 13/2013 was confronted and got exhibited as Ex.A14. Here the counsel for plaintif at the time of his argument by referring the document under Ex.A14 submitted that along with these 66O.S.370/2014 defendants, D.W.2 and some others though obtained sale deeds from the vendor of defendants, subsequently, they got filed

P.L.C., before Mandal Legal Service Committee, Narasaraopet with a prayer to handover possession of the said property after measuring the said property through mandal surveyor. However, the said P.L.C., was closed with an observation that D.W.2 and others have no right over the said property. In order to prove the said factum, Ex.A14 which is only a signature of the witness on the P.L.C., was got exhibited and it was before this court to decide the said factum.

53.On perusal of the said document shows one P.L.C was got filed by D.W.2 seeking direction to the appropriate authorities to take steps to measure and handover the property purchased by them in pursuance of the registered sale deed. However, the order in P.L.C., shows that the said application was closed with an observation when the Tahsildar filed a report stating that the measuring of land is not possible as there are no boundaries in the said title deed and the layout of the said area was not filed along with the petition. So, the report of the Tahsildar shows that the property was not identifiable basing on the sale deed of

D.W.2, but not otherwise as submitted by the counsel for plaintif. Here, the counsel for plaintif by showing the weaknesses in the case of defendants and other purchasers of plots from Yasani Lakshmi wants to gain the relief of plaintif for his prayer of declaration and recovery of possession which is absolutely not permissible. It is for him to explain the identity of 67O.S.370/2014 his plot as part of plot No.19 in the alleged approved layout

before municipality of the year 2006. But, in the absence of

proof of any such fact in the evidence of D.W.2 or the document under Ex.A14 could not show any material on his behalf in order to conclude that the plaintif discharged his burden to declare him as an absolute owner of the plaint schedule property. So, as could be seen from the evidence of D.W.2 coupled with the

Ex.A14, the P.L.C was closed when the property covered under the sale deed produced by the said witness was not identifiable.

In the cross examination of D.W.2 it was similarly tried to elicit through the witness to know whether some of the purchasers raised huts in their properties and the same were removed after decreeing the above land grabbing case. This is another area where the contention of the plaintif went contrary to the earlier submissions. As could be seen from the plaint pleadings and the documents of the plaintif side shows that after the disposal of

L.G.C., possession was handed over to the vendors under Ex.A2 without stating the mode of handing over possession. However, quite contrary to the said contention, the evidence of P.W.1 went on stating delivery of possession through revenue authorities at one point of time and subsequently by the respondents themselves in the year 1999. Quite contrary to the admission of plaintif, he started suggesting to the 1st defendant as D.W.1 and

D.W.2 that possession was taken over by the police and the huts of the purchasers were removed after the decree in the L.G.C., which are all shows variance in the stand of plaintif in order to 68O.S.370/2014 believe his version. The evidence of D.W.3 which is similar to that of the evidence of D.W.2 before this court as one of the purchasers of the property under a registered sale deed dt.16-10-1986 in the name of his wife contended that he has been in possession and enjoyment of the property purchased under the above referred sale deed. This witness was similarly suggested in his cross examination by the counsel for plaintif that after the appeal preferred before the Hon’ble High Court and its disposal, Dontaraju Krishna Murthy and others taken possession of the property. This is another area which is quite contrary to the earlier versions of the plaintif in order to prove the factum, how the vendors of plaintif got obtained possession of the property after the disposal of L.G.C.No.76/1990. There is no piece of document or any relevant evidence on behalf of the plaintif to prove before this court that the petitioner in

L.G.C.No.76/1990 by following the procedure, obtained possession either through revenue people as directed by the said court in L.G.C.No.76/1990 or through the respondents. In the absence of any such evidence invariably this court has to draw inference that there was no such recovery of possession to the petitioner in L.G.C.No.76/1990 for the property covered under the said case in order to transfer the same to his vendees under

Ex.A2. So, all the eforts on behalf of the plaintif in order to prove his contention that the possession of the property is well with the petitioners in L.G.C.No.76/1990 as found in the written 69O.S.370/2014 arguments contrary to the pleadings and evidence are all proved futile in order to discharge his burden to prove the said fact.

54.Here, it is also relevant to refer the arguments of counsel for plaintif when referred the order in I.A.813/2006 in

O.S.222/2006 got filed by the defendants herein as petitioners

therein seeking for temporary injunction which was dismissed on merits. Wherein the observation of the trial court about the right and title of the petitioner in L.G.C.No.76/1990 before Land

Grabbing Court, not entitled the petitioners therein for their relief. Absolutely the order in I.A.813/2006 in O.S.222/2006 on the file of Principal Junior Civil Judge, Narasaraopet is not in dispute. However it is a settled ratio that once a final order is passed, the interim order mergers into the final order and the interim order (including all directions thereunder) automatically cease to operate. In this context, it is relevant to refer the observation before their lordships reported in State of Assam vs. Barak Upatyaka D.U Karamchari Sanstha 2009 (5) SCC 694 wherein the Hon’ble Apex Court held that “an interim order cannot be precedent and is only an order making temporary arrangement to preserve statusquo to ensure that the matter does not become either infructious or a fait accompli before final hearing. The interim order does not finally and conclusive decide an issue and it is not possible to read such tentative reasons as final conclusion. So, the observation in the above case law completely debarred the plaintif to canvas any favour 70O.S.370/2014 under the said order after the final disposal of the suit in

O.S.222/2006. The vendors of plaintif herein as defendants in

O.S.222/2006 for the reasons best known to them not contested

the mater resulted the exparte decree before the said court. So, absolutely, the plaintif has no option except to take recourse in the said proceedings on the final result and the order in

I.A.813/2006 in O.S.222/2006 would not helpful to him at any point of time after the final judgment of the said suit in

O.S.222/2006.

55.Last but not the least with regard to the other line of argument on behalf of the plaintif with reference to the identity of the property. In the written arguments filed by the plaintif through his counsel at one point of time raised a contention that the property of defendants is altogether diferent and distinct when compared to the property of plaintif. But, according to the defendants the property purchased by the 2nd defendant includes the present plaint schedule. Admittedly there are no plot numbers in the title deeds of defendants 1 and 2 in Exs.B1 and

B2, but contrary to the said schedule, the schedule in

O.S.222/2006 and the schedule in E.P.92/2011 they referred the

plot numbers as 11 and 12 for an extent of 390 sq.yds., shown as Item No.1 and Item No.34 in an extent of 190 sq.yds., and in all, 585 sq.yds., covered under Ex.B1 and 195 sq.yds., in plot

No.33 covered by Ex.B2. If that is the case and according to the defendants, they are in possession and enjoyment of the present 71O.S.370/2014 disputed property being the schedule in O.S.222/2006 certainly there would be identity dispute with regard to the property of the plaintif herein, but no steps were taken by the plaintif either to measure the plaint schedule property or to localize the said property in order to identify the disputed plot referred as north of plot No.19 in T.S.No.1579/1 in order to resolve the identity dispute. In the absence of any such steps on behalf of the plaintif invariably made this court to draw an adverse inference that intentionally steps were not taken and if at all they were taken, the same would goes against to the case of the plaintif which is well within his knowledge. In view of the above discussion as the evidence of plaintif similarly failed to show and to prove the factum of his possession and enjoyment of the plaint schedule property as on the date of filing of the present suit. Accordingly this issue is also answered against the plaintif.

Issue No.3:

56.In view of the findings on Issue No.2, when the decree and judgment in O.S.222/2006 has not challenged even after the date of the decree or even in the E.P.92/2011 at the time of delivery passed by a competent civil court which is so far not yet set aside by moving any appropriate application, made this court to conclude that the same is binding on the plaintif. Accordingly, this issue is answered.

72O.S.370/2014

Issue Nos.4 and 5:

57.In view of the findings on Issue Nos.1 and 2, these issues are answered against the plaintif.

Issue No.6:

58.In view of the findings on Issue Nos.1 to 5, the suit has to be dismissed. In the circumstances each party has to bear their own costs.

59.In the result, the suit is dismissed. Each party has to bear their own costs.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court this the 2nd day of September, 2021.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Plaintif: PW1: Godugu Anjaneyulu (plaintif) PW2: Vanga Malla Reddy PW3: Tubati Appa Rao PW4: Nelaturi Suvarnaraju PW5: Nelluri Brahmaiah PW6: Pagadala Subrahmanyam PW7: Gokanakonda Mandaiah

For Defendants: DW1: Molatrati Raja Rao (1st defendant) DW2: Returu Prabhakara Rao DW3: Balijepalli Abraham DW4: Alladi Subhushana Rao

DOCUMENTS MARKED

For Plaintif: Ex.A1: C.C of power of attorney dated 25.11.2006 executed in favour of Sayani Ananda Babu by Shaik Meera Vali, Bolla Brahma 73O.S.370/2014

Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in respect of the schedule property

Ex.A2: C.C of the registered sale deed dated 06.05.2002 vide document No.5968 of 2006 executed by the sons of Dontaraju Krishna Murthy in favour of the Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet

Ex.A3: C.C of the sale deed dated 29.06.1907 vide document No.1561 of 1907 executed by Kolalapudi Pitchamma, W/o.Sadasivudu, in favour of Boda Koli Lingam and Boda Manchemma

Ex.A4: C.C of the registered sale deed dated 09.02.1930 vide document No.313 of 1930 for Ac.5:47 cents executed by Boda Manchemma, W/o.Koti Lingam and Swarna durgamba, W/o.Veera Raghava Chari, D/o.Manchemma in favour of Kakumanu Peda Peri Reddy

Ex.A5: C.C of the sale deed dated 09.06.1940 vide document No.1668 of 1940 executed by Kakumanu Peda Peri Reddy in favour of Dontaraju Krishna Murthy adopted son of Mallikarjuna Rao for Ac.2.47 cents out of Ac.5:47 cents

Ex.A6: C.C of the sale deed dated 09.06.1940 vide document No.1669 of 1940 executed by Kakumanu Peda Peri Reddy in favour of Dontaraju Veeramma, W/o.Mallikarjuna Rao for Ac.3:00 cents out of Ac.5:47 cents

Ex.A7: C.C of the decree and judgment passed in Land Grabbing Case No.76 of 1990 dated 18.07.1994 by the Hon’ble Land Grabbing Tribunal

Ex.A8: C.C of the order passed in Writ Petition No.21393 of 1994

dated 16.09.1998 by the Hon’ble High Court of A.P.,

Ex.A9: Copy of the decree and judgment, plaint, written statement order in I.A.813/2006 in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.A10: Copy of the E.P. No.92 of 2011 in OS No.222 of 2006

Ex.A11: C.C of the registered sale deed dated 20.03.1989 vide document No.1173 of 1989 standing in the name of the first defendant namely M. Raja Rao, S/o.Ananda Rao executed by Yasani Lakshmi, W/o.Narsimhulu, D/o.Boda Narayana Granddaughter of Boa Koti Lingam

Ex.A12: C.C of the registered sale deed dated 20.03.1989 document No.1174 of 1989 standing in the name of the second defendant namely Dasari Lara Grace Sarojini, D/o.Vandanam executed by Yasani Lakshmi, W/o.Narasimhulu, D/o.Boda Narayana granddaughter of Boda Koti Lingam 74O.S.370/2014

Ex.A13: Original registered sale deed dated 16.01.2007 executed by Sayini Ananda Babu being the GPA of Shaik Meera Vali, Bolla Brahma Naidu and Shaik Showkath Ali of Prakash Nagar, Narasaraopet in favour of the plaintif in respect of suit schedule property

Ex.A14: Signature of petitioner Returu Prabhakar Rao in PLC No.13 of 2013 before the Lok Adaath at Mandal Level, Narasaraopet (marked in the cross examination of D.W.2)

Ex.A15: C.C of the registered sale deed dated 15.04.2008 executed by K. Srinivasa Reddy in favour of Vanga Malla Reddy

Ex.A16: C.C of registered gift deed dated 19.04.2008 executed by Tubati Appa Raoi in favour of K. Hemantha Nagaraju

Ex.A17: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali in favour of Nelluri Brahmaiah

Ex.A18: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Nelaturi Suvarna Raju

Ex.A19: C.C of the registered sale deed dated 16.12.2013 executed by Sk. Meera Vali and others in favour of V. Sri Latha

Ex.A20: C.C of the registered sale deed dated 29.06.2006 executed by Sk. Meera Vali and others in favour of Gokanakonda Mandaiah.

For Defendants: Ex.B1:Registration extract of the regd., sale deed dated 20.03.1989 vide document No.1173 of 1989 executed by Yasani Lakshmi @ Boda Lakshmi in favour of the first defendant

Ex.B2: Registration extract of the regd., sale deed dated 20.03.1989 vide document No.1174 of 1989 executed by Yasani Lakmi @ Boda Lakshmi in favour of the 2nd defendant

Ex.B3: Xerox copy of the certified copy of the decree and judgment dated 20.08.2010 passed in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.B4: Copy of the E.P. No.92 of 2011 in OS No.222 of 2006 on the file of the Prl. Junior Civil Judge’s Court, Narasaraopet

Ex.B5: Copy of the property delivery receipt dated 30.05.2011 in

E.P. No.92 of 2011 in OS No.222 of 2006

Ex.B6: Copy of the certified copy of the judgment dated 31.01.2005 passed in CC. No.01 of 1998 on the file of the Prl. Junior Civil Judge’s Court, Guntur.

Sd/-SUNKARA SRIDEVI

Addl.Senior Civil Judge, Narasaraopet.

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NARASARAOPET.

PRESENT: Smt. Sunkara Sridevi,

Principal Senior Civil Judge,

Narasaraopet.

Friday, this the 21st day of OCTOBER, 2022

Original Suit No.267/2015

Between:-

State Bank of India, A schedule Bank incorporated under the State Bank of India, Act, 1955 having branches all over India including at Prakashnagar, Narasaraopet as Agricultural Development Branch as Plaintiff herein represented by its Branch Manager at Narasaraopet and Mandal.

... Plaintiff

- And -

1. Yedula Srinivasa Reddy, S/o Venkata Subba Reddy, Hindu, aged 38 yrs, Agriculturist, R/o Chinna Dornala, Dornala Mandal, Prakasam District.

2. Pushpavathi Cold Storage Pvt. Limited, Represented by its Managing Director Nathani Venkateswarlu having their business near Kanaparru bavi, Chilakaluripet Road, Kanaparru Village, Nadendla Mandal.

(2nd defendant added as per orders in IA.805/2018, dt.29.1.2019)

... Defendants

Counter Claim in Original Suit No.267/2015

Between:-

Yedula Srinivasa Reddy, S/o Venkata Subba Reddy, Hindu, aged 38 yrs, Agriculturist, R/o Chinna Dornala, Dornala Mandal, Prakasam District. ... Counter claimant/1st Defendant - And -

State Bank of India, A schedule Bank incorporated under the State Bank of India, Act, 1955 having branches all over India including at Prakashnagar, Narasaraopet as Agricultural Development Branch as Plaintiff herein represented by its Branch Manager at Narasaraopet and Mandal.

... Respondent/Plaintiff

2 * * *

This suit is coming on 14-10-2022for final hearing before me in the presence of Sri G.L.V. Ramana Murthy, Advocate for the Plaintiff/Respondent in Counter claim and of Sri B. Anil Kumar, Advocate for the 1st defendant/Counter claimant and of Sri Ch. Nageswara Rao, Advocate for the Defendant No.2, upon perusing the material on record, hearing on both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a suit filed for a sum of Rs.4,19,825/- along with subsequent interest and costs basing on the loan transaction.

There is a counter claim filed by the 1st defendant for a sum of Rs.9,56,036/- along with interest and costs.

2.Initially, the plaintiff bank got filed the suit against the sole defendant. Subsequently, as per the orders in IA.805/2018, dt.29.1.2019, the 2nd defendant was impleaded as a party to the proceedings.

3. The brief averments of the plaint are as follows:-

The 1st defendant approached the plaintiff bank for sanction of loan against ware-house receipt or receipts during 2011 on execution of necessary application form as stipulated on 7.4.2011 for a sum of

Rs.6,60,000/- repayable along with interest from that date at the rate of 1.1% p.a. above/below S.B.A.R with a minimum of 10.65% p.a. at monthly rests and to be discharged on or before 6.4.2012. The loan was sanctioned with the loan account No.31702136423 The defendant had executed demand promissory note, take delivery letter on the same day facilitated the plaintiff to proceed against the defendant for recovery of the said loan. In the tripartite agreement, the name of the defendant shown incorrectly as Modula Srinivasa Reddy instead of Yedula Srinivasa

Reddy and however, the defendant signed as Yedula Srinivasa Reddy as 3 such, the said mistake was not recognized and except the said mistake, there is no difference in the individual with the name of Yedula Srinivasa

Reddy. There was a tripartite agreement with the defendant and M/s.

Pushpavathi Cold Storage Pvt., Ltd., so that, it will not part with or deliver the stock to the defendant, except after receipt of written authorization of the plaintiff. The defendant along with the cold storage got executed an arrangement letter on 7.4.2011 in favour of the plaintiff bank disclosing the value of stock as per the receipts being Rs.9,49,552/-.

There are other documents executed by the defendant in respect of the loan like ware-house receipts, undertaking-cum-take delivery letter disclosing security that was created to be operated as continuing the security for all loans of the 1st defendant including the one in the suit and acknowledgment of plaintiffs lien on the produce of the 1st defendant with the 2nd defendant cold storage. The defendant also executed his consent in favour of the plaintiff bank to disclose and to furnish anything about the said loan i.e., to Credit Information Bureau (India) Limited. The 1st defendant made an application for loan against the pledge of ware-house receipts in respect of the goods deposited with the 2nd defendant. The 1st defendant executed a demand promissory note in favour of the 2nd defendant for the sanctioned loan amount of

Rs.6,60,000/- payable together with interest. The 2nd defendant being the payee, transferred the promissory note in favour of the plaintiff on the same day. The plaintiff became the holder in due course.

Defendants 1 and 2 jointly delivered the promissory note to the plaintiff.

The 2nd defendant is a co-obligant to the loan sanctioned to the 1st defendant. The plaintiff being a holder in due course entitled to recover its dues from both the defendants. Both the defendants are jointly and severally liable to discharge the amount to the plaintiff. Both the defendants agreed and gave power to the plaintiff that in case of failure 4 of payment of amount due to the plaintiff, it is entitled to auction the goods which are in possession of the 2nd defendant by public auction or otherwise after expiry of 15 days from the date on which a registered notice is issued. The 2nd defendant undertook to indemnify the loss, damage or injury caused to the produce stored by the borrower in its godown. On 11.3.2013, the plaintiff bank issued a notice to the 1st defendant calling upon him to discharge the amount due to the plaintiff within 10 days, failing which the stock will be sold in auction. Later, on 21.11.2012 a paper publication of sale of the pledged goods will be conducted is made in Enadu daily, inspite of it, loan was not discharged by the defendants. Hence, both the defendants are jointly and severally liable to discharge the debt due to the plaintiff bank.

3(a). The defendant had to and therefore, produced savings bank account number, Raithwari Pattadar Passbook to the plaintiff. The bank is at liberty to seek for discharge of loan from the defendant as per D.P.

note delivery letter. The plaintiff bank got issued a legal notice on 3.11.2012 and there was no reply from the defendant. As such, as per

Annexure No.V, the produce of the defendant was sold in Public auction dt.11.3.2013 and the proceeds thereof Rs.75,964/- were credited to the loan account of the defendant. The rent amounts payable to the above cold storage as well as commission amount of public auction were debited to the loan account and the loan account of the defendant on the date of suit shown as balance in the plaint and got filed the suit. It is also submitted that Act 4 of 1903 and Act 45 of 1987 are not applicable to the suit debt of Nationalized bank namely the plaintiff.

4.The brief averments of the written statement-cum-counter claim filed by the 1st defendant are as follows:- 5

He denied all the allegations in the plaint and contends that the defendant kept his stock of 137 bags of “Red variety” and 119 bags of "Teja variety" of red chillies in M/s. Pushpavathi Cold Storage Pvt., Ltd.

Each bag of chillies was weighing 45 Kgs. The total weight of 187 bags red chillies variety has come to 84 quintals and 15 kgs. The total weight of 119 bags of Teja variety chillies is 53 quintals and 55 kgs and total weight of total bags of 225 is 737.60 quintals. The market price of each quintal of chillies of the variety of Teja and Red at the time of alleged auction was at Rs.7,500/-. Therefore, the total value of the stock kept by the defendant was Rs.10,32,000/-. There is a country large Mirchi Yard at

Guntur located at a distance of 40 k.m. from Narasaraopet town. The value of chillies at quintal at that time in the Mirchi Yard was Rs.7,500/-.

In fact, under annexures II and IV enclosed to the plaint reveals that the approximate value of the stock stored by the defendant was at

Rs.9,49,552/-. Basing on the value of the stock pledged, the plaintiff bank sanctioned the short term loan of Rs.6,60,000/-. No prior notice was issued to the defendant about the auction proceedings. No prior proclamation was made. The alleged auction conducted by the plaintiff bank was behind the back of the defendant and without his consent and knowledge. The alleged auction is totally collusive with the assistance of the 2nd defendant and other business personalities to get unlawful gain by deceiving the defendant. The bank authorities must have been gratified in selling the stock for a meager amount of Rs.75,964/-. The auction was not conducted according to law and the provisions of the Indian Contract

Act. The best and real market price was not realized. The alleged auction is a mockery to deceive the defendant and other borrowers. The plaintiff bank is solely responsible to get the best reasonable price. The bank authorities have not obtained the opinion of the expert in ascertaining the correct value of the stock at the time of the alleged 6 auction. There is no basis to fix the upset price in conducting the auction.

The place of auction is also removed which may discourage the intending purchasers. As a matter of fact, the defendant was totally kept in dark about the auction proceedings. As there was no notice, there was no scope to appear and file his objections in the auction by the defendant.

The actual difference between the original market value and the amount realized in auction is at Rs.9,56,036/-. The defendant was not aware of the paper publication with regard to the auction. As per the statement of account, the amount left due after the date of auction by the defendant was at Rs.4,19,825/-. If the real market price of the stock was realized in the auction, the total debt of the plaintiff bank must have been discharged and the bank might have refunded the rest of the amount of

Rs.5,36,211/-. The plaintiff bank is liable to refund the amount of

Rs.5,36,211/- together with interest at the rate of 24% p.a. No prior notice was issued informing the date, place of auction and not invited the objections of the defendant. No notice was served upon the defendant even prior to the auction, he came to know about the auction proceedings only after receiving summons in this suit.

4(a). The plaintiff bank did not file the correct statement of accounts. The defendant paid Rs.2,40,818/- on 21.11.2011, Rs.2,50,000/- on 25.11.2011, Rs.1,00,000/- on 13.12.2011 to the plaintiff under receipts. But the total amount of Rs.5,90,848/- was paid by the defendant and the said amount was credited in the bank account of the defendant. The suit claim is hopelessly barred by limitation. The 1st defendant is an illiterate and not worldly-wise. The plaintiff bank obtained his signatures on some printed papers without his knowledge with regard to contents therein. The 1st defendant is not aware of the execution of promissory note and other documents alleged in the plaint. The rate of 7 interest claimed in the suit is excessive, exorbitant and hit by the usurious loans Act. The plaintiff bank cannot claim excessive interest other than 6% p.a. at simple rate of interest and the statement of account is totally incorrect. M/s Pushpavathi Cold Storage is a necessary party, hence the suit is bad for non-joinder of necessary party. Hence, the suit is liable to be dismissed with costs and decree the counter claim along with interest at the rate of 18% p.a. and for costs.

5.The brief averments of the written statement filed by the 2nd defendant are as follows:

It denied all the allegations in the plaint except the approach of the 1st defendant to the plaintiff bank for sanction of loan against the pledge of ware-house receipts and made an application. Accordingly, after considering the same, the plaintiff bank sanctioned the amount and the 1st defendant agreed to repay the same with interest within a period of one year and the loan amount was credited to the loan account of the 1st defendant are all true and correct. The 2nd defendant introduced the 1st defendant to the plaintiff bank to sanction loan against the cold storage receipt issued by it at the time of storage of agricultural product of the 1st defendant with the 2nd defendant. It never executed any promissory note in the name of the plaintiff bank, besides that the 1st defendant for any liability as alleged in the plaint, it has no liability at all to pay any sum under the suit. The allegations in the plaint that the 2nd defendant stood as guarantor and both the defendants executed a promissory note and D.P. note, take delivery letter in the name of plaintiff bank is false and it does not create any liability upon the 2nd defendant under law. The demand promissory note, take deliver letter clearly shows that the D.P. note was executed by the 1st defendant in the name of the 2nd defendant, it was endorsed to the plaintiff bank. The contents of the 8 document never disclosed that it is liable for any sum to the plaintiff bank. Therefore, either the D.P note or its take delivery letter will not create any liability to the 2nd defendant to the plaintiff bank under the suit claim.

5(a). The further allegations that the tripartite agreement made the 2nd defendant equally liable in due discharge of the loan amount is false and it creates no liability of this defendant. For any liability under the suit basing on any of the documents filed by the plaintiff for the reason that the 2nd defendant never agreed to stand as a guarantor for any liability with that of the 1st defendant under the suit. The column

No.2 of tripartite agreement reveals that the 2nd defendant should deliver the produce that was stored with it by the 1st defendant without any authoritative letter from the plaintiff bank. Accordingly, it delivered the stock of the 1st defendant to the plaintiff only at the time of conducting auction. Hence, there is no deviation or breach of contract by the 2nd defendant. Coming to the quality and quantity of the stock, while it was with the 2nd defendant, it has no liability for any loss in weight, shrinkage or no guarantee is given for the life colour and quality of the goods stored in the cold storage. The goods for storage are accepted entirely at the depositors own risk. This can be seen on the back side of the cold storage receipt at Column Nos.15, 18 and 19. The tripartite agreement at Point No.3 says that “in the event of default of repayment by the borrower, the bank can take the stored stock from the 2nd defendant and it cannot claim any right over it except that there is no expressing verbatim to fix up the liability of the 2nd defendant to pay any sum to the bank.” In point No.4, “the conditions of the cold storage receipt will prevail against the point of loss and damage.” Therefore, the tripartite agreement does not create any liability to the plaintiff bank 9 either personally or as guarantor for any sum under this sum. Therefore, the allegations that the 2nd defendant stood as guarantor is false and created for the purpose of false suit and to drag on the defendant to an unnecessary litigation and the plaintiff is liable to make exemplary costs to the 2nd defendant. The stock of the 1st defendant that was stored with the 2nd defendant was insured with National Insurance Company Ltd., through Ing Vysya Bank Ltd., Narasaraopet by National Collateral

Management Services Ltd., called as NCMSL against the goods and it was duly verified by the agent of the said services limited from time to time and he is also concerned person to certify about the quality and quantity of the stock to be taken delivery by the bank at the time of conducting the auction. Hence, any loss is occurred in respect of the stock, the bank has to proceed against the insurance company for any recovery, but not against the 2nd defendant.

5(b). The plaintiff bank without exhausting the remedies available under law, strait away got filed the suit without impleading the proper and necessary parties. Hence, the suit is bad for non-joinder of necessary parties. The documents filed by the plaintiff will not create any liability of the 2nd defendant in any manner and this defendant need not pay any amount to the plaintiff bank under this suit. The frame of suit is incorrect and not in accordance with law. This Court has no jurisdiction to entertain the suit for the reason the terms and conditions of the cold storage receipt filed by the plaintiff at point No.6 shows that “the settlement of dispute firm any claim dispute arising out of this agreement shall be the civil courts at Guntur after exhausting the remedy of settling the same by referring to the sole arbitrator who may be appointed by the cold storage.” Hence, as per the arbitration Act, the suit has to be rejected and this court has no jurisdiction and it is ousted by the 10

Arbitration Act. The 2nd defendant is not liable either the suit claim or the costs thereof under law and the suit is liable to be dismissed against the 2nd defendant along with costs.

6.The brief averments of the rejoinder filed by the plaintiff for the counter claim are as follows:

The submission of the plaintiff that the suit is filed with relevant documents saying the borrower pledged for the stock enabling the plaintiff for realization of loan granted to him in the event of default of repayment by the said borrower. The said documentation shows that the borrower/defendant agreed that he is responsible to repay the loan. The material on record shows that the defendant never made any payment for discharge of loan amount, nor ever pleaded at any point of time that he got paid any amount for discharging the said loan. This type of defendant is making the written statement with a prayer of counter claim which is not permitted according to law. Further, the defendant agreed in writing that the loan is payable along with interest on or

before 6.4.2012. The loan is out of the amount of public funds not of

personal funds of any officer of the bank. So, any application is supposed to be prepared only after going through the documents filed along with the plaint, but not otherwise. The plaintiff bank denied all the other allegations in the written statement-cum-counter claim. It is submitted that unfortunately, the defendant never pleaded that as to how and why he did not reply the notice issued by the plaintiff bank.

The counter claim says that the borrower must be invited to participate in the auction which is unknown to law. There is no contract as in pledge alone because there are three parties to the contract. If any one wants to avoid auction, he will pay the amount. Without payment of amount, waiting till filing of written statement may be appreciated by this Court. If 11 this would be the attitude, the same may be kindly be taken into judicial notice. The suit is in time. All the contents in the written statement are self contradictory. Therefore, such kind of pretextuval behaviour is not permitted and everyone will escape from their liability if this type of defence is taken. The counter claim is not in accordance with law and it is liable to be dismissed as belated with special costs.

6(a). It is submitted that the auction conducted honestly with possible price at the time of auction. It is quite common that the stock will be depreciated by lapse of time. As the borrower failed to pay the amounts, the event of auction arose. Nobody stopped the borrower to pay the amounts before auction. The bank followed the procedure for the auction. If really, the borrower felt that his stock was more valuable, he could not have allowed the time to go on without payment of the loan obtained by him. He kept quite because he knows well that the bank cannot get even the loan amount by selling that kind of stock. So, the written statement with counter claim is not justified and it is only an attempt to avoid payment of loan if possible under the guise of counter claim. Hence, the counter claim is liable to be dismissed.

7.Basing on the above pleadings, the following issues on 3.2.2017 and additional issues on 6.6.2019 were settled for trial by the predecessor of this office:-

1. Whether the Sale of the stock held by the plaintif bank is legal and valid?

2. Whether the suit claim of the plaintif bank is true, correct, valid and binding on the defendant?

3. Whether the plaintif is entitled for the suit claim amount?

4. Whether the defendant is entitled for counter- claim amount of Rs.9,56,036/- as prayed for?

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5. To what relief?

Additional Issues:

1. Whether the 2 nd defendant stood as guarantor to the 1 st defendant and whether the 2 nd defendant is liable to discharge the suit debt on behalf of the 1 st defendant?

2. Whether in view of tripartite agreement, this Court lack of jurisdiction to try the suit and whether the parties have to invoke the provisions of Arbitration Act as pleaded in written

statement of the defendant No.2?

3. Whether the tripartite agreement does not create any liability against the 2 nd defendant towards plaintif bank, as pleaded in his written statement?

8.On behalf of the plaintiff, P.Ws.1 and 2 were examined and

Exs.A1 to A19 were got marked. On behalf of the defendants, D.Ws.1 and 2 were examined and no documents were marked.

9.Heard the counsel for the plaintiff, also filed memo of arguments on behalf of the plaintiff bank. The counsel for the defendants 1 and 2 argued orally. The counsel for the plaintiff in his arguments submitted that the entire case of the State Bank of India in these matters is that the 2nd defendant by keeping the deposit of chillies issued ware-house receipts in favour of the 1st defendant/borrower/farmer and the farmer was introduced to the bank by the 2nd defendant and on an application made by the borrower, loan was sanctioned in his favour and he availed the loan facility, executed promissory note in favour of the 2nd defendant, who in turn transferred the promissory note in favour of the

State Bank of India. Both the defendants 1 and 2 jointly delivered the promissory note along with delivery letter and apart from it, there is an 13 appropriate agreement executed between the parties and the 2nd defendant gave authorization to the plaintiff bank that the goods will be rendered to the bank for the purpose of sale if the loan is not discharged by the borrower. The further case of the plaintiff that tripartite agreement, there is a liability agreed by the 2nd defendant in favour of the borrower for any damage if caused in respect of quality and quantity of the deposited goods which are pledged in favour of the bank. The debt is not discharged. Hence the auction sale notice was issued and property was sold in public auction and after deducting the sale amount, still the suit amount is due to the plaintiff bank. Hence, filed the suit for recovery of amount.

9(a). The counsel for the plaintiff also drawn the attention of this

Court by referring the citation reported in AIR 1963 AP 348 between

M/s. Bezonji Byramji and Co., Jalna and others Vs. Central Bank

of India Ltd., Bombay wherein the Section of law makes it clear that both the defendants are jointly liable to pay the suit amount. He also submitted another citation reported in 2002 (0) SCJ Online (AP) 525,

between Indur Finance Corporation and Partnership Firm Vs.

Gopal and Company and others wherein the observation by their

Lordships that both the defendants are liable to pay the suit amount.

The arguments of the plaintiff went on showing the claim of the 1st defendant for his relief of counter claim wherein he admitted the sale of goods that are pledged to the bank and the sale is made as the borrower failed to pay the debt and if at all the borrower paid the debt, there is no need for the bank to put the property for sale. Therefore, it should be inferred that the 1st defendant failed to pay the debt. The counsel for the plaintiff also drawn the attention of this Court by referring the provision under Section 176 of Contract Act, wherein says that the pawnee will 14 have to issue reasonable notice to the pawnor expressing his intention to sell the property. There is no specified form of notice and the consequence of invalid sale would be that the pledge subsist and the pawnor retains the right of redemption, but the borrower in this case, not filed any suit for redemption and for damages as observed by their

Lordships reported in SA.No.674/1996, dt.6.4.2010, between Sri

K.V. Sohan Vs. Sri D. Krishna. The other point that was submitted by the counsel for the plaintiff in reply to the contention of the defendants that the suit claim is barred by limitation against the 2nd defendant.

According to his submission, the 1st defendant is the 1st person liable to pay the amount and the 2nd defendant was subsequently, added on application and it was pleaded that by mistake, he was not added and the same was condoned by the Court and the act is with good faith under

Section 21(1) of the Indian Limitation Act, the 2nd defendant is deemed to have added as on the date of original institution of the suit. So, taking into consideration of all the above said facts, the suit may be decreed against the defendants 1 and 2 with costs and to dismiss the counter claim.

9(b). Per contra, the counsel for the defendants 1 and 2 respectively in their arguments reiterated the pleadings and also pointed out the inconsistency in the evidence of P.W.2 who is the Branch Manager of the plaintiff bank squarely admitted the laches in the statement of account particularly the auction amount which was not credited in the loan account of the 1st defendant. Their argument also show that the plaintiff bank has failed to follow the procedure more particularly not got issued the statutory notice under Section 176 of Indian Contract Act in order to canvas that the sale proceedings conducted by the plaintiff bank is valid under law. They also pointed out the other discrepancies in the 15 case of the plaintiff bank not only about the particulars which are the material particulars about the date of auction, the place of auction, the persons present as bidders in the auction and the auction register which are all invariably show that the plaintiff bank according to its whims and fancies without following the procedure and without the knowledge of the borrower conducted the auction unilaterally contrary to the procedure.

The counsel for the 1st defendant also highlighted the evidence of the 1st defendant along with the evidence of the Secretary of Agricultural Market

Yard Committee examined in other suits produced the price list of the market yard during the period of alleged auction in order to show the value of the Mirchi that was kept in the cold storage shows the worth of chillies is more than Rs.7,000/- per quintal entitled the 1st defendant to get the amount covered under the counter claim even after deducting the balance amount due by the borrower as per the statement of account.

Issue No.1, Additional Issue Nos.1 to 3:

10.Since all the issues are inter-related, this Court intends to discuss them at once for better appreciation.

11.The case of the plaintiff bank basing on the evidence of P.W.2 coupled with Exs.A1 to A19 is that the 1st defendant as borrower, approached the plaintiff bank for sanction of loan against the ware-house receipts issued by the 2nd defendant in his favour for the produce of

Mirchi kept in their cold storage for safe custody and availed loan of

Rs.6,60,000/- on 7.4.2011 agreed for the rate of interest as claimed by the plaintiff bank and executed the demand promissory note, D.P. note, take delivery letter, tripartite agreement, arrangement letter, storage receipts undertaking-cum-take delivery letter and other necessary documents along with the 2nd defendant. Though the defendant agreed 16 to repay the said amount before 6.4.2012, he committed default and did not respond even after the issuance of notice on 3.11.2012, made the plaintiff bank issued a publication of sale of the pledged goods on 21.11.2012 and conducted public auction and credited the same in the loan account of the defendant and even after the sale of pledged goods, the 1st defendant is still liable for the balance loan amount, as per the statement of account, the plaintiff bank got filed the present suit against the defendants 1 and 2 for recovery of amount.

12.The case of the 1st defendant basing on the evidence of D.W.1 is that the plaintiff bank has not followed the procedure and the guidelines given by the banking authorities and without following the procedure, conducted the auction which is void ab-initio and on the alleged date of auction, the value of Chillies which were kept in cold storage as per the total value is of Rs.6,500/- per quintal and the plaintiff bank is liable to pay a sum of Rs.1,06,322/- to the 1st defendant towards counter claim after deducting the balance loan amount.

13.The case of the 2nd defendant basing on the evidence of D.W.2 is that the 2nd defendant is not a guarantor to the loan transaction and as per the tripartite agreement, it handed over the pledged goods to the plaintiff bank and complied the conditions of the tripartite agreement not at all liable for the amount due by the 1st defendant who is the borrower of the plaintiff bank.

14.Since the plaintiff got filed the present suit contending that the defendants 1 and 2 by agreeing the terms of loan executed all the necessary documents in favour of the plaintiff bank and pledged the goods before the plaintiff bank and kept the goods before the 2nd 17 defendant by the 1st defendant who executed a promissory note in favour of the 2nd defendant who in turn endorsed the said promissory note in favour of the plaintiff bank made the defendants 1 and 2 jointly and severally liable for the suit amount which is the balance due under the loan account of the 1st defendant, the burden is on the plaintiff not only to prove the loan transaction of the 1st defendant, but also the liability of the 2nd defendant on par with the 1st defendant in order to claim the relief against the defendants 1 and 2. The plaintiff in order to discharge its burden examined the one and only witness on its behalf, it is none other than the Branch Manager of the plaintiff bank as P.W.2. He filed his chief affidavit reiterating the contents of the plaint. Through this witness, 18 documents were marked as Exs.A1 to A18 and Ex.A19 was marked during the cross-examination of D.W.2.

15.Before adverting to the evidence of the plaintiff through P.W.2, let us see the argument submitted by the counsel for the plaintiff, initially, submitted a citation reported in AIR 1987 Orissa 67, between Umesh

Chandra Misra Vs. State Bank of India and another. His submission shows that in case of banks, the Branch Manager who is the present

Manager can give evidence basing upon the record and in all times, the then Branch Manager who was present at the time of sanctioning the loan need be examined. The observation by their Lordships in the above case law refers the provision under Order XXIX, Rule 1 of C.P.C reads as follows:

“Subscription and verification of pleading. In

suits by or against a corporation, any pleading may

be signed and verified on behalf of the corporation by

the Secretary or by any Director or the other

Principal Officer of the corporation who is able to

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depose to the facts of the case.”

Their Lordships also referred the observations reported in various journals wherein it was held that –--

“The suit has been instituted in the name of

Body Corporate, namely, the State Bank of India,

which personally cannot act and the plaint has to be

presented by its agent and it could not find a more

competent person to present the same in Court than

the Branch Manager.”

16.The citation submitted by the counsel for the plaintiff is absolutely not in dispute. The reasons best known to the plaintiff his argument went on submitting the capability of P.W.2 to give evidence on behalf of the plaintiff bank which is never and ever objected by the contesting defendants at any point of time. So, absolutely, the point that was urged by the counsel for the plaintiff to consider the evidence of

P.W.2 is not at all in dispute. The defendants no where pointed out any ambiguity with reference to the locus standi of P.W.2 to depose evidence pertaining to the loan transaction of the year 2011.

17.Now let us see the documents that were exhibited through

P.W.2 for its claim against the defendants 1 and 2. Ex.A1 is the promissory note dt.7.4.2011. Ex.A2 is the loan application-cum-appraisal dt.7.4.2011. Ex.A3 is the tripartite agreement between the 2nd defendant, 1st defendant and the plaintiff as 1 to 3 parties respectively. Ex.A4 is arrangement letter issued by the defendants 1 and 2. Ex.A5 is the cold storage receipt, undertaking-cum-take delivery letter executed by the defendants 1 and 2. Ex.A6 is notice of bank lien on specified goods.

Ex.A7 is the CIBIL report. Admittedly, the execution of Exs.A1, A3 to A7 19 by the defendants 1 and 2 in favour of the plaintiff bank is not in dispute.

Here it is pertinent to refer the pleadings of the plaintiff initially in the year 2015 when got filed the suit against the 1st defendant as sole defendant contending the approach of the 1st defendant to the plaintiff bank seeking sanction of loan against the ware-house receipts issued by the 2nd defendant and execution of all the necessary documents availed a loan of Rs.6,60,000/-. The said contention of the plaintiff was absolutely not in dispute and it was admitted by the defendants 1 and 2 even in their pleadings and evidence.

18.However, the plaintiff by moving an application for amendment in the year 2019 i.e., 4 years after the institution of the main suit impleaded the 2nd defendant cold storage as one of the parties to the proceedings also added paragraph No.5(a) in the plaint that the 1st defendant executed a demand promissory note in favour of the 2nd defendant for the sanction of loan amount payable together with interest and the 2nd defendant being payee transferred the said pronote on the same day and thus, the plaintiff became the holder in due course. The defendants 1 and 2 jointly delivered the promissory note to the plaintiff.

The 2nd defendant is a co-obligant to the loan sanctioned to the 1st defendant and the plaintiff bank as a holder in due course entitled to recover its due from both the defendants and as such both the defendants are jointly and severally liable for the suit amount.

19.The approach of the 1st defendant to the plaintiff bank and availment of loan against the ware-house receipts issued by the 2nd defendant and executed all the necessary documents in favour of the plaintiff bank and availment of loan of Rs.6,60,000/- agreed to repay the said amount before 6.4.2012 are all not in dispute. However, the 2nd 20 defendant raised a contention that the claim against it, is barred by limitation and the suit that was instituted originally did not show any cause of action against it and there are no averments against the 2nd defendant till the plaint was amended in the year 2019 which is more than three years to the date of availing loan invariably made the claim of the plaintiff is barred by limitation and on that score, the claim against the 2nd defendant is liable to be dismissed.

20.Per contra, the counsel for the plaintiff relied upon number of citations reported in various journals wherein the provision referred in those settled ratio is nothing but Section 21 of the Indian Limitation Act.

The submission of the counsel for the plaintiff is that it was pleaded in the application for amendment that the 2nd defendant was not added mistakenly was condoned by the Court and impleaded the 2nd defendant as a proper and necessary party. When the act is done in good faith under Section 21 (1) of Indian Limitation Act, the 2nd defendant is deemed to have added as on the date of original institution of the suit. Now it is relevant to refer the citation submitted by the counsel for the plaintiff in this context reported in 1978 STPL 358 AP, between Rasetty

Rajyalakshmamma and others Vs. Rajamuru Kannaiah, wherein the observation by their Lordships that ---

“The object of Section 21 of Limitation Act is

primarily to protect the right of the party may have,

but action was not originally constituted properly but

was defective. In case of such defective action at the

commencement itself, a new plaintiff or defendant

can be substituted or added under this Section and

the suit as against such substituted or added party

shall be deemed to have been instituted when he was

so made a party. A proviso, however, has been added

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to Sub-Section (1), so that any omission to include a

person due to a mistake made in good faith does not

deprive a party of his rights against that person if the

Court is satisfied in that behalf. By the proviso,

power is conferred on the Court in such

circumstances, to direct that the suit as regards to the

plaintiff or defendant shall be deemed to have been

instituted at any earlier date. This proviso is

obviously added for making Section 21 consistent

with Sections 14 and 17(1) (c) which lay down that a

bonafide mistake is a valid ground for extending the

period of limitation in case where the suit or

application is for relief from the consequence of such

bonafide mistake.”

21.In another citation reported in 2004 STPL 1385 AP,

between Murali Mohan Naidu and others Vs. Iskala Nadi Ramanna

and another, wherein the observation by their Lordships by referring the provision under Section 21 of Limitation Act impleaded the defendants 2 to 4 being the legal heirs of the deceased 1st defendant so as to represent the estate of the deceased.

22.The observation by their Lordships in the above case law is absolutely not in dispute, but coming to the case on hand, here the plaintiff though whispered the participation of 2nd defendant to avail the loan by the 1st defendant who is one of the executants of all the necessary documents in favour of the plaintiff bank, no where whispered the liability of the 2nd defendant as co-obligant as amended in the year 2019. Not only that there is no cause of action in the entire plaint averments against the 2nd defendant in order to bring it into the suit record as one of the contesting defendants to claim the relief against it 22 as joint and several on par with the 1st defendant. The argument submitted by the counsel for the plaintiff that if at all there is a bonafide mistake in good faith applying the provisions under Section 21 of

Limitation Act, the bank can proceed against the 2nd defendant and the cause of action is continuing and survives against the 2nd defendant.

Except contending in the arguments that the bonfaide mistake done in good faith by the plaintiff bank was condoned by this Court in the application of the year 2019, there is no evidence on behalf of the plaintiff bank for not showing the 2nd defendant as proper and necessary party at the time of inception of the suit in the year 2015. Admittedly no notice was issued to the 2nd defendant till 2019 i.e., the date of impleadment of the 2nd defendant as a party to show that the plaintiff bank not showed the 2nd defendant in the plaint initially is only a bonafide mistake. In the absence of any pleadings including the cause of action against the 2nd defendant mere adding the 2nd defendant as one of the party to the proceedings and amending the plaint by adding paragraph No.5(a) of the plaint are all not enough to show the bonafides in the case of the plaintiff to proceed against the 2nd defendant. In the absence of any material to show merits in the case of the plaintiff bank that the 2nd defendant being a co-obligant is jointly and severally liable along with the 1st defendant.

The proposition of law submitted by the plaintiff bank is not applicable to the case on hand. The impleadment of 2nd defendant after the lapse of 8 years to the date of availment of loan will not save the period of limitation against the 2nd defendant in order to raise any claim against it for its liability as joint and several along with the 1st defendant. The contention of the 2nd defendant that the suit against it is barred by limitation is absolutely sustainable and the contention of the plaintiff that in view of the observation by their Lordships in the above case law basing on the provision of Section 21 of the Limitation Act, the suit against the 23 2nd defendant is in time is absolutely not sustainable and the ratio laid down by their Lordships in the above case law to implead the legal heirs of the deceased defendant to represent the estate is not applicable to the present case on hand.

23.However, if it is presumed for argument sake that the 2nd defendant is also added as party to the proceedings in the year 2019 and as per the ratio by their Lordships in the above case law this Court considered the bonafide mistake and allowed the impleadment of the 2nd defendant from the date of institution of the suit. Let us see the evidence of the plaintiff whether shows any material against the defendants 1 and 2 for its claim to recover the amount as pleaded in the plaint. P.W.2 was thoroughly cross-examined by the counsel for the defendants. Their main concentration is about the procedure that was not followed by the bank before conducting the auction. According to the defendants 1 and 2, the plaintiff has not complied the provision under

Section 176 of Indian Contract Act. In that line, the cross-examination of

P.W.2 went on showing that the document under Ex.A18 i.e., postal acknowledgment dt.10.9.2012 is not pertaining to the notice under Ex.A8.

The plaintiff bank has not filed any postal receipt or the postal acknowledgment connected to Ex.A8 notice.

24.In this context, it is relevant to refer the document under

Ex.A8. It is nothing but office copy of the notice issued by the plaintiff bank to the 1st defendant to his address at Chinna Dornala Village. A perusal of the notice shows that it was issued on 3.11.2012 wherein the bank sent a notice to the 1st defendant informing him about his loan account which was availed by him on 7.4.2011 agreed to repay the 24 amount before 6.4.2012 and however, inspite of their repeated demands, he failed to repay the amount and after the receipt of the notice within one week if he failed to repay the loan amount, they will sell the pledged goods and appropriate the sale proceeds in his loan account. Admittedly,

Ex.A8 was not sent to the 2nd defendant who is said to be the co-obligant, jointly and severally liable for the loan account of the 1st defendant. P.W.1 admitted that Ex.A8 notice was not sent to the 2nd defendant. Here the case of the 1st defendant is that no such notice was served on the 1st defendant. The plaintiff bank without following the procedure and without sending a reasonable notice under the provisions of Section 176 of

Contract Act, illegally conducted auction and thereby vitiated the procedure. The counsel for the plaintiff in his arguments submitted the provision under Section 176 of Indian Contract Act and also drawn the attention of this Court on the settled ratio reported in various journals.

25.Before adverting to the proposition of law reported in various journals, here it is relevant to refer the provision under Section 176 of

Indian Contract Act. Section 176 of the Act deals with the right of pawnee or pledgee in the case of default by the pledger. The Section is in these terms “if the pawnor makes default in

payment of the debt, or performance; at the

stipulated time of the promise, in respect of

which the goods were pledged, the pawnee

may bring a suit against the pawnor upon the

debt or promise, and retain the goods

pledged as a collateral security; or he may

sell the thing pledged, on giving the pawnor

reasonable notice of the sale.

25

If the proceeds of such sale are less

than the amount due in respect of the debt or

promise, the pawnor is still liable to pay the

balance. If the proceeds of the sale are

greater than the amount so due, the pawnee

shall pay over the surplus to the pawnor.”

26.Before adverting to the rival contentions in respect of the notice under Section 176 of the Indian Contract Act whether complied by the plaintiff bank before conducting auction of the pledged goods or not, here it is also relevant to refer the relevant terms covered under the

Indian Contract Act which are applicable to the status of the plaintiff and defendants to the present suit transaction. Section 172 of the

Contract Act defines the terms pledge, pawnor and pawnee. The bailment of goods as security for payment of a debt or performance of a promise is called ‘pledge’. The bailor is in this case, called the ‘pawnor’. The bailee is called the ‘pawnee’.

27.Coming to the case on hand, here the 1st defendant as security for payment of loan kept the goods of chillies before the 2nd defendant cold storage and obtained the ware-house receipt which was kept with the plaintiff bank towards security for payment of debt comes under pledge. The 1st defendant is the bailor/pawnor and the plaintiff bank is the bailee/pawnee. Now coming to the provision under Section 176 of Contract Act as the 1st defendant committed default in payment of debt as agreed by him even in his evidence, whether made the plaintiff bank to proceed against the goods pledged and issued any reasonable notice of sale to the 1st defendant or not. According to the case of the plaintiff, it got issued the said notice to the 1st defendant. But according 26 to the 1st defendant, no such notice was served on the 1st defendant and on that score, the claim of the plaintiff would go. Admittedly, no postal receipt or postal acknowledgment showing the service of notice under

Ex.A8 to the 1st defendant is exhibited. The postal acknowledgment under Ex.A18 said to have been the service of proof connected to Ex.A8 is proved futile when the witness P.W.2 admitted that the said acknowledgment is unconnected to Ex.A18 and shows the date before the date of Ex.A8. Now it is relevant to refer the citation submitted by the counsel for the plaintiff reported in SA.No.674/1996, dt.6.4.2010, between Sri K.V. Sohan Vs. Sri D. Krishna wherein the observation by their Lordships of Hon’ble High Court of Kerala when referred the citation reported in AIR 2006 Madhya Pradesh 35, between Sunderlal Saraf

Vs. Subhas Chand Jain, wherein it was held as follows:

“Since this Section does not speak about the

sending the notice of intending sale on a particular

date, time and place are not mentioned in the notice

would not render the said notice ineffective or in

contravention to Section 176 of the Act. According to

me, since the pawnee (defendant), who had given a

reasonable notice under Section 176 of the sale was

competent to sell the pawned articles at anytime after

sending the notice. Merely because 7 days notice was

given by pawnee (defendant) would not ipso facto gets

the notice invalid. Since no particular time has been

prescribed in Section 176 of the Contract Act.”

28.The observation by their Lordships when applied to the case on hand, the same is not applicable to the case of the plaintiff. In this case, there is no proof of service of Ex.A8 notice to the 1st defendant in order to show that the plaintiff bank complied the provision under Section 27 176 of the Contract Act that it has given a reasonable notice to the 1st defendant before conducting auction. Mere marking the notice under

Ex.A8 which is only the office copy which does not show any proof of service to show that the plaintiff bank served the said notice on the 1st defendant to canvas that it complied the provision under Section 176 of the Contract Act before conducting auction. Though the defendants raised several contentions that there are no particulars in the plaint that when the date of auction was given and when the auction was conducted and the issuance of auction notice in the newspaper which is not circulated in Prakasam District are all not sustainable in view of the observation by this Lordships in the above case law that they are all not found in Section 176 of the Contract Act to comply the provision of reasonable notice. But in this case, there is no such service of notice to the 1st defendant in order to canvas by the plaintiff bank that it got issued the notice before conducting auction to comply the provision under

Section 176 of the Contract Act. So, the rival contentions on the factum of issuance of notice to comply the provision under Section 176 of the

Indian Contract Act is not complied by the plaintiff bank before the sale of pawned articles.

29.The cross-examination of P.W.2 by the defendants further concentrated about the procedure of auction. P.W.2 deposed that, he cannot say the upset price fixed for the auction and he admitted that it is the duty of the bank to get best price for the stock in auction to safeguard the interest of the borrower. Here it is also pertinent to state that the plaintiff bank inspite of the objections raised by the 1st defendant in his written statement-cum-counter claim that there are no particulars about the date of auction, place of auction, the names of the persons participated in the auction as bidders and the upset price fixed by the 28 plaintiff bank to treat the sale as void ab-initio and the entire proceedings is only a mockery, the plaintiff to rebut the said contention got exhibited the documents under Exs.A10 to A12 which are the certified copies of auction register, publications and bidders list respectively. However, it did not whisper the relevant pages or the relevant entries in those documents pertaining to the loan transactions of the 1st defendant. On verification of the documents under Exs.A10 and A11 i.e., the auction register and the paper publication showing public notice on 21.11.2012 does not show the name of the 1st defendant or his transaction pending under Ex.A2 before the plaintiff bank. The counsel for the plaintiff not even drawn the attention of this Court for the purpose how those documents are relevant to the transaction of the 1st defendant. Thus, the documents under

Exs.A10 to A12 are nothing but a futile exercise on behalf of the plaintiff bank which does not rebut the contention of the 1st defendant that the sale of pledged articles is not in accordance with law and it is arbitrary and with malafides.

30.Here it is also pertinent to state that the plaintiff bank not even tendered the alleged notice said to have been served by it after the alleged auction informing the 1st defendant about the amount due under his loan account which comes under the present cause of action. So, the one and only notice under Ex.A8, dt.3.11.2012 exhibited by the plaintiff without any proof of service to the 1st defendant completely failed to prove the contention of the plaintiff that it served the notice under

Section 176 of the Contract Act before initiating the sale proceedings. In all, the contention of the defendants that the plaintiff bank failed to prove the factum of reasonable notice to the 1st defendant as borrower/pawnor to comply the provision under Section 176 of the Contract Act is not complied is quite sustainable. The citation submitted by the counsel for 29 the plaintiff is not at all applicable to the case on hand since there is no such notice issued by the plaintiff bank to the 1st defendant as referred under Ex.A8.

31.In this context, it is relevant to refer the citation submitted by the counsel for the defendants reported in 2 nd Appeal No.593 of 1954, decided on 29.1.1965, between Prabhat Bank Ltd., Vs. Babu Ram, wherein it was observed that –--

“The sale of securities by the appellant bank

without reasonable notice to the respondent was bad

and was not binding on him. What is contemplated

by Section 176 is not merely a notice, but a

“reasonable” notice, meaning thereby a notice of

intended sale of the security by the creditor within a

certain date so as to afford an opportunity to the

debtor to pay up the amount within the time

mentioned in the notice. No such notice was ever

given by the appellant to the respondent. There can

thus he no escape from the conclusion that the sale of

the securities by the appellant was against law and

not binding on the respondent.”

32.The observation by their Lordships is aptly applicable to the case on hand. In this case also, there is no reasonable notice within the meaning of Section 176, thereby a notice of intended sale of the security by the creditor within a certain date so as to afford an opportunity to the 1st defendant to pay up the amount within the time mentioned in the notice. In another citation reported in AIR 1947 Bombay 217, between the Official Assignee Vs. Madholal Sindhu, wherein the observation by their Lordships that ---

“there is no such saving clause in Section 176,

30

and in my opinion its provisions are mandatory, and

it is not opened the parties to contract themselves out

of those provisions. The notice that is to be given to

the pledger of the intended sale by the pledgee is a

special protection which the statute has given to the

pledger and parties cannot agree that in the case of

any pledge the pledgee may sell the pledged articles

without notice to the pledger.”

33.The observation by their Lordships similarly applicable to the case on hand. Here the plaintiff who got filed the suit contending that the 1st defendant committed default and inspite of repeated demands, when did not turn up to repay the amount, as a last resort the plaintiff bank got issued a legal notice on 3.11.2012 under Ex.A8 proceeded with the auction and conducted sale. Finally it issued a notice on 11.3.2013 calling upon the 1st defendant to discharge the amount due to the plaintiff bank within 10 days, failing which the stock will be sold in auction. Not only that the service of notice to the 1st defendant either for Ex.A8 or for the final notice dt.11.3.2013 are also not produced to show that it complied the provision under Section 176 of the Contract Act to proceed against the produce of Mirchi to exercise its right as pawnee to recover the amount by affording an opportunity to the 1st defendant to repay the loan which was not done by it. So, in view of the above discussion, particularly basing on the document under Ex.A8, it is enough to conclude that there is no reasonable notice to the 1st defendant from the plaintiff bank to comply the provision under Section 176 of the Contract Act.

34.Now it is relevant to refer the other contentions raised by the defendants 1 and 2 particularly about the liability of the 2nd defendant.

And according to them, the 2nd defendant is not a co-obligant and he is 31 only one of the executants of tripartite agreement complied the conditions and delivered the goods to the plaintiff bank inconsonance to the terms and conditions of the tripartite agreement. Before adverting to the point that was raised by the defendants, here it is also relevant to refer the document under Ex.A1 which is a D.P. note dt.17.4.2011. A perusal of the document shows that it was executed by the 1st defendant as borrower in favour of the 2nd defendant and admittedly the 2nd defendant as guarantor not signed on the D.P. note. However, beneath the D.P. note, the D.P. note take delivery letter contains the signatures of the defendants 1 and 2 to show that they both delivered the D.P. note to the plaintiff bank. Here it is also pertinent to refer the endorsement on the back side of Ex.A1 was got marked through the 2nd defendant in his cross-examination as Ex.A19 where the 2nd defendant cold storage endorsed “pay to the plaintiff bank or order”. The 2nd defendant as D.W.2 admitted the execution of Ex.A1 and his endorsement on the reverse of the promissory note as Ex.A19 as “pay to the plaintiff or to its order”, which is enough to prove the contention of the plaintiff in the amended pleadings that the promissory note was executed in favour of the 2nd defendant who in turn endorsed the same to the plaintiff bank to show the liability of the defendants 1 and 2 which is joint and several towards the plaintiff. The counsel for the 2nd defendant though tried to appraise

before this Court that basing on the conditions of the tripartite

agreement i.e., under Ex.A3, the liability of the 2nd defendant is limited and except handing over the pledged goods to the plaintiff bank in the event of default of repayment, nothing is extensive to fix the liability of the 2nd defendant as co-obligant to the loan transaction, but the same is not sustainable, in view of the execution of Ex.A19 endorsement in favour of the plaintiff bank made it as holder in due course.

32

35.The counsel for the 2nd defendant also read the terms and conditions of the tripartite agreement which reads the undertaking of the 2nd defendant that it will not part with or deliver the produce except after receipt of the written authorization of the bank. The firm also agreed not to deal with the produce in any manner without any reference to the bank. The firm also agrees that the bank in the event of default of repayment by borrower, the bank shall be entitled to demand upon the firm to deliver custody of the produce covered under the ware-house receipts with full rights to sell them as pledge for realization of the loan granted by the bank to the borrower. The firm also agrees to indemnify the bank as against any loss, damage or injury caused to the produce stored by the borrower in the godown. In the event of any such loss, damage or injury to be caused to the produce of the borrower, the firm shall forthwith pay the value of the produce to the bank.

36.The conditions that are pointed out by the counsel for the 2nd defendant are absolutely not in dispute and the 2nd defendant who agreed to deliver the custody of produce to the plaintiff bank covered under the ware-house receipts, in case of default by the 1st defendant was complied by it. But that does not mean that the 2nd defendant relieved from its liability when obtained the promissory note under Ex.A1 and entrusted the same to the plaintiff bank shows its liability which is co extensive with that of the 1st defendant. In this context, it is pertinent to refer the condition No.7 of Ex.A3 agreement wherein it refers that “the firm and the borrower i.e., defendants 1 and 2 agree that this agreement is in addition to the other documents executed or to be executed in favour of the bank.” That itself shows the remaining documents i.e., Exs.A1, A4 to A7 and A19 which are all executed by the defendants 1 and 2 when the 1st defendant availed the loan from the plaintiff bank wherein the 2nd 33 defendant stood as co-obligant to the said transaction invariably concludes that both the defendants 1 and 2 are jointly and severally liable for the transaction covered under Ex.A2 loan application. Here it is also relevant to refer the defence of the defendants that the tripartite agreement does not create any liability against the 2nd defendant towards the plaintiff bank as pleaded in their written statement is not sustainable in view of the execution of other documents including the D.P. note Take

Delivery Letter as referred in the tripartite agreement.

37.In this context, it is also relevant to refer the citation submitted by the counsel for the plaintiff reported in 2002 (0) SCJ

Online (AP) 525, between Indur Finance Corporation and

Partnership Firm Vs. Gopal and Company and others, wherein the observation by their Lordships when referred various provisions covered under Negotiable Instruments Act which reads as follows:

Section 9 of the Negotiable Instruments Act that ‘holder in due course’. It reads as follows:

“Holder in due course means any person who

for consideration became the processor of a

promissory note, bill of exchange or cheque if

payable to bearer, or the payee or endorse thereof, if

(payable to order), before the amount mentioned in it

became payable, and without having sufficient cause

to believe that any defect existed in the title of the

person from whom he derived his title.

Under Section 9 in order to be a holder in due

course three conditions are necessary.

1. That the endorsee becomes the holder in

due course when it is for consideration.

2. He can be a endorsee before the amount 34

mentioned in the promissory note became payable

and

3. Without having sufficient cause to believe

that any defect existed in the title of the person from

whom he derived his title.

Section 36 of the Act dealing with the liability

of prior parties to holder in due course says that every

prior party to a negotiable instrument is liable

thereon to a holder in due course until the instrument

is duly satisfied.

Section 43 of the Act reads as follows:

Negotiable instrument made, etc., without

consideration: A negotiable instrument made, drawn,

accepted, endorsed, transferred without

consideration, or for a consideration which fails,

creates no obligation of payment between the parties

to the transaction. But, if any such party has

transferred, the instrument with or without

endorsement to a holder for consideration, such

holder, and every subsequent holder deriving title

from him, may recover the amount due on such

instrument from the transferor for consideration or

any prior party thereto.

A casual reading of these provisions clearly

reveals the protection to a holder in due course. The

first part of the Section provides that where there is

initial want of consideration or where there is

subsequent failure of consideration for a negotiable

instrument, such instrument does not create an

obligation for payment as between the parties to the

35

transaction. The expression ‘parties to the

transaction’ clearly indicates that the plea of

avoidance of the liability is available only to the

immediate parties to the transaction. The very

essence of a negotiable instruments is its negotiability

and as is well known there may be one or more

assignments of the rights under an instrument.”

Their Lordships also referred the presumptions under Section 118 of Negotiable Instruments Act and Section 114 of the Evidence Act.

It was held that –--

“In view of the clear legal position as can be

culled out from Sections 36 and 43, Sections 9 and

118 of the Act, this court has no other go except to

arrive an irresistible conclusion that the other

defendant is also liable to pay the amounts due under

the cheques.”

38.A perusal of the case facts in the above case law is similar to the case on hand. Though the trial Court initially decreed the suit against some of the defendants who are the borrowers and dismissed the suit against the defendants who made an endorsement on the negotiable instruments and handed over the same to the plaintiff.

39.According to the submission of the counsel for the plaintiff, the plaintiff is a holder in due course under Section 9 of Negotiable

Instruments Act and the observation by their Lordships in the above case law basing on the provisions covered under Section 36 and 43 of the

Negotiable Instruments Act, the plaintiff bank is entitled to recover the loan amount from the defendants 1 and 2 jointly and severally. The 36 submission of the counsel for the plaintiff is quite sustainable and the observation by their Lordships is squarely applicable to the case on hand.

The 1st defendant who executed a promissory note in favour of the 2nd defendant under Ex.A1 which was endorsed by the 2nd defendant in favour of the plaintiff bank and delivered the promissory note to the plaintiff bank who is none other than the holder in due course within the definition of Section 9 of Negotiable Instruments Act and it is entitled to recover the claim from the defendants 1 and 2 jointly and severally.

40.However, in view of the above discussion, when the claim against the 2nd defendant is not in time and it is barred by limitation as the plaintiff bank impleaded the 2nd defendant in the year 2019, absolutely not entitled to claim any relief against the 2nd defendant, in the absence of any material pleadings to show its liability which is co- extensive with that of the 1st defendant. Coming to the other discussion of this Court about the non-issuance of the notice under Section 176 of the Contract Act against the 1st defendant made the claim of the plaintiff invalid as it failed to follow the procedure before conducting auction as valid, and on that score, the suit is also not maintainable since the plaintiff bank failed to follow the procedure as contemplated under

Section 176 of Indian Contract Act before conducting the auction of the pledged goods.

41.Now let us see the other point that was urged by the defendants particularly with reference to the public auction and fixation of upset price by the plaintiff bank contrary to the principle of natural justice and procedure. According to the 1st defendant, the pledge of stock

before the 2nd defendant is 225 bags of Teja variety Mirchi under 5 ware-

house receipt bearing Nos.229506, 229537, 229505, 229536 and 229507.

37

The said contention is also not in dispute and the same was also admitted by the plaintiff bank through its witness P.W.2. The case of the 1st defendant is that the plaintiff bank without following the procedure and without furnishing the particulars of the auction and the upset price got mentioned the amount of auction as Rs.57,719/- which shows the sale of produce is bad under law. The cross-examination of P.W.2 i.e., present

Branch Manager shows that he does not know the actual market value of the stock by the date of loan was Rs.7,500/- per quintal and he does not know how the amount of Rs.75,964/- was arrived during auction and he does not know that during 28.11.2012 to 30.11.2012 as per the market yard rates, Teja variety Chilly price was Rs.6,300/- to Rs.8,400/-, which are all shows that he has no knowledge even as per the record about the material particulars as pointed out by the defendants. His evidence shows that he cannot say the price of the Mirchi stock sold in auction per quintal. Not only that he failed to state the other material particulars about the way in which the auction was conducted and who are the bidders participated in the auction and the upset price fixed by the plaintiff bank before conducting auction which are all very much material to show the bonafides on the part of plaintiff bank that it was not acted unauthorizedly and with malafides either to fix the upset price or to conduct the auction to realize the loan amount out of the sale proceeds of the pledged stock. There is no evidence to prove the factum of the alleged auction dt.11.3.2013 as shown in the pleadings that the plaintiff bank when conducted the auction fixed the upset price per quintal to realise the amount out of the public auction from the pledged stock of the 1st defendant even to show that the plaintiff bank was not acted arbitrarily to realize the amount covered under Ex.A2 loan transaction. When the defendants suggested that the rate of Teja Mirchi as on the date of auction, the same is unknown to the witness. In this context, it is also 38 relevant to refer the citation submitted by the counsel for the defendants reported in 2012 (5) ALT 39 (SC), between Ram Kishun and others

Vs. State of U.P. and others, wherein the observation by their

Lordships of Hon’ble Apex Court that “fundamental error in procedure or fraud vitiates sale”. In another citation reported in 2009 (3) ALT 552,

between Sri Venkateshwara Rice Mill Vs. Andhra Pradesh State

Financial Corporation and others, wherein the observation by their

Lordships that –-

“Selling the Mill at a lesser price than the

assessed value amounts to malafide, capricious and

unreasonable exercise of power.”

42.In another citation reported in 2010 (5) ALT 217, between

C. Rayan Babu Vs. B.K.L. Tranders rep. By its Proprietor and

another, wherein it was observed that –--

“it is a material irregularity in conducting the

sale which could vitiate the sale warranting

interference to set aside the sale.”

43.The observations by their Lordships in the above case law which reiterates the fundamentals in the procedure to conduct sale when noticed any fraud, the same would vitiates the sale. Coming to the case on hand, the evidence of the plaintiff through its documents in Exs.A10 to

A12 do not show any evidence on its behalf that it followed the procedure and the procedure that was adopted by the plaintiff bank to conduct sale following the norms which is not malafide and unreasonable in order to substantiate its case for the relief of recovery of amount.

39

44.In this context, it is also relevant to refer the improved contention of the plaintiff while doing cross-examination of D.W.2 who is the Managing Director of the 2nd defendant cold storage. The entire cross- examination went on suggesting that due to power fluctuation and the other unforeseen circumstances may result the depreciation of quality and quantity of the pledged stock in the cold storage. The counsel for the plaintiff wants to apprise the Court that the pledged stock that was kept in the 2nd defendant storage for a period of more than one year results the decrease of quality and quantity and that is the reason the auction amount was only of Rs.57,719/-. But the said contention of the plaintiff is only an after thought which was improved in the cross- examination of D.W.2 never and ever pleaded in the plaint or contended in the evidence of P.W.2.

45.In this context, it is also relevant to refer one of the conditions under Ex.A3 tripartite agreement wherein the 2nd defendant firm undertakes to indemnify the loss if any caused to the quality and quantity of the pledged stock due to loss, injury or damage ruled out the improved contention of the plaintiff that the quality and quantity of the pledged stock was diminished due to the conditions in the 2nd defendant cold storage and thereby the result of auction amount was only Rs.57,719/-, It is absolutely not permissible to canvas the plaintiff that the amount which was shown in the plaint towards the sale of pledged stock which is only

Rs.57,719/- contrary to the market value of the Mirchi by the date of the said auction is result of maintenance of the 2nd defendant storage. In this context, it is also relevant to refer the cross-examination of P.W.2 when admitted the role of NCMSL (National Collateral Management Service

Limited) will certify the quality, quantity and value of the stock before the loan and as per the value furnished in the certification, loan will be 40 sanctioned. He deposed that they did not inform NCMSL at the time of disposal of the stock by way of auction. The evidence of plaintiff bank is itself enough that it did not take the necessary steps before conducting auction to verify the quality and quantity of the stock and in those circumstances, it cannot improve its contention that due to poor maintenance of the 2nd defendant storage, the stock was sold for a lesser price.

46.So, the entire cross-examination of D.W.2 on the said aspect is nothing but a futile exercise not entitled the plaintiff to improve such a contention in the absence of pleadings which is absolutely impermissible as per the settled ratio reported in AIR 1987 SC Page 1242 between

Ram Sarup Gupta (dead) by LRs Vs. Bishun Narain Inter College

and others, wherein it was observed that--

“It is well settled that in the absence of

pleadings, evidence, if any produced by the parties

cannot be considered. It is also equally settled that

no party should be permitted to travel beyond its

pleadings and that all necessary and material facts

should be pleaded by the party in support of the case

set up by it.”

47.Last, but not least about the issue that was framed in Serial

No.2 in Additional Issues about the jurisdiction of this Court to try the suit and whether the parties have to invoke the provisions of Arbitration Act as pleaded in the written statement of the 2nd defendant. Here it is relevant to refer the provision under Section 8 of The Arbitration and

Conciliation Act, 1996, which reads as follows:

41

“A judicial authority before which an action is

brought in a matter which is the subject of an

arbitration agreement shall, if a party so applies not

later than when submitting his first statement on the

substance of the dispute, refer the parties to

arbitration.”

48.The 2nd defendant except pleaded in its written statement that the parties have to invoke the provisions of Arbitration Act, not initiated any steps even before the submission of its first statement in order to comply the provisions of Section 8 of the Arbitration and Conciliation Act, 1996, to challenge the jurisdiction of this Court that the parties have shown interest to settle the matter before the arbitrator. Both the defendants 1 and 2 without moving any application to refer the matter for arbitration straight away filed their written statements and thereby lost their right to challenge the jurisdiction of this Court as pleaded.

49.So, in all, in view of the above discussion as the plaintiff who got filed the suit for recovery of amount against the defendants 1 and 2 completely failed to discharge its burden to prove its contention that the claim against the 2nd defendant is in time and it followed the procedure by complying the provision under Section 176 of Contract Act by serving a reasonable notice to the 1st defendant before conducting auction and the sale of pledged goods were conducted by following the procedure and the same is valid and binding on the 1st defendant. Accordingly, Issue

No.1 is answered against the plaintiff. Additional Issue Nos.1 to 3 are also answered accordingly.

Issue Nos.2 and 3:

50.In view of the findings on the above referred issues, these 42 issues are also answered against the plaintiff.

Issue No.4:

51.It is the case of the 1st defendant as a counter claimant that basing on the market value of the Teja Mirchi which are the pledged goods

before the plaintiff bank under Ex.A2 loan transaction, each quintal of

Mirchi by the date of auction is of Rs.6,500/- and if it is calculated with the total quintals i.e., 137 quintals and 60 kgs and after adjusting the alleged auction amount and the suit claim still an amount of Rs.1,06,322/-.

However, the counter claimant in the cause of action paragraph at Page

No.4, in Paragraph No.12, shown the difference of amount as

Rs.9,56,036/-, similarly valued the counter claim for the said amount and even though, the said amount referred in words as Rupees One Lakh Six

Thousand Three Hundred and Twenty Two Only. The counter claimant also pleaded that he had paid Rs.2,40,818/- on 21.11.2011, Rs.2,50,000/- on 25.11.2011 and Rs.1,00,000/- on 13.12.2011, for which there are receipts, did not produce any such alleged receipts on his behalf. Since the 1st defendant contends that the plaintiff bank is due of amount to him, the burden is on the defendant in order to prove his contention. Here the 1st defendant as D.W.1 examined himself to substantiate his contention, no documents were marked on his behalf. In his cross-examination, he admitted that he did not pay any amount under the suit claim and his claim for counter claim after deducting the suit claim and basing on the said statement, the counsel for the plaintiff suggested that the counter claim is not in time and the relief pleaded by the 1st defendant is not in accordance with law.

52.In this context, it is also relevant to refer the submission of the counsel for the plaintiff when relied upon the citations reported in 43 various journals wherein the observation by their Lordships that when the borrower disputed the sale and notice has paid the money or redeemed the liability, he has the options to file the suit for redemption or the suit for damages. By referring the settled ratio, the counsel for the plaintiff submits that the counter claim is not maintainable since the 1st defendant has not initiated the appropriate actions following the provisions of Indian

Contract Act. It is relevant to refer the observation submitted by the counsel for the plaintiff reported in SA.No.674/1996, dt.6.4.2010, between Sri K.V. Sohan Vs. Sri D. Krishna wherein the observation by their Lordships that –-- “In a case where debt is still in outstanding, the remedy available to the appellant is two folder assuming that the bank has illegally sold the property, the remedies available are (1) to sue for redemption (2) to sue for damages for conversion.

Their Lordships also referred the page No.74 in

Halsbury’s Laws of England, Fourth Edition

wherein it is mentioned as follows:

“Actions for recovery by pawnor. A pawnor

cannot maintain an action for conversion against a

pawnee for the pledge unless the pawnor has a right

to its immediate possession, consequently until tender

or payment of the debt the pawnor cannot generally

maintain an action for conversion of the pledge. A

pawnor may sue a pawnee who refuses to restore the

pledge after tender of the debt, but if the ownership

of the pledge is in doubt, the refusal if made

reasonably and to obtain a reasonable time for the

purposes of investigation, will not ground such an

action. In similar circumstances, the assignee of a

44

pawnor may bring an action for conversion, and may

recover for damages for non- delivery.”

53.In another citation reported in AIR 1960 AP 272, between

Narasayyamma Vs. Andhra Bank, wherein it was held that –-

“In case of an unauthorized sale by a pledgee

the relief that the pledger can seek is to file a suit for

redemption by depositing the money, treating the sale

as if it had never taken place, or where the suit for

redemption is not filed, to ask for damages on the

foot of conversion. A mere suit for declaration that

sale of certain shares is contrary to law and did not

affect the right of the pledgor to redeem the pledge of

the shares with an ancillary relief for injunction

restraining the company from registering the shares

in the name of the purchasers is not maintainable.”

54.The observation by their Lordships when applied to the case on hand, here the 1st defendant who admittedly not repaid the amount neither approached for redemption nor for damages under conversion.

The 1st defendant who got filed the counter claim not even whispered the same when he was testified, is itself enough that the 1st defendant has not approached the Court for the appropriate relief as observed by their lordships in the above case law. In view of the above discussion, since the 1st defendant failed to approach the Court for appropriate relief, this

Issue is also answered against the 1st defendant.

Issue No.5:

55.In view of the findings on Issues 1 to 4 and Additional Issues 1 to 3, the suit is liable to be dismissed and the counter claim is also 45 liable to be dismissed and each party has to bear their own costs.

56.In the result, the suit is dismissed.

In the result, the counter claim is also dismissed.

In the circumstances, each party do bear their own costs.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 21st day of OCTOBER, 2022.

Sd/- Sunkara Sridevi,

PRINCIPAL SENIOR CIVIL JUDGE,

NARASARAOPET.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintiff:-For Defendants: -

P.W.1 : V. Rajendra Rao (Eschewed) D.W.1 : Yedala Srinivasa Reddy P.W.2 : Ch. N. Malleswara Rao (1st defendant) D.W.2 : Nathani Venkateswarlu.

DOCUMENTS MARKED

For Plaintiff:-

Ex.A1/--:Promissory note and Take delivery letter, dt.7.4.2011. Ex.A2/--:Application-cum-Appraisal for loans, dt.7.4.2011. Ex.A3/--:Tripartite Agreement, dt.7.4.2011. Ex.A4/--:Arrangement Letter. Ex.A5/--:Cold Storage receipt, undertaking-cum-Take delivery Letter. Ex.A6/--:Acknowledgments of banks lien. Ex.A7/--:Submission of credit information to CIBIL. Ex.A8/--:O/c of Legal notice. Ex.A9/--:Abstract of Loan account. Ex.A10/--:Auction register. Ex.A11/--:C.C.of Publications. Ex.A12/--:C.C. of Bidders list. Ex.A13/--:Cold storage Bond, dt.5.4.2011. Ex.A14/--:Cold storage Bond, dt.2.4.2011. Ex.A15/--:Cold storage Bond, dt.5.4.2011. Ex.A16/--:Cold storage Bond, dt.2.4.2011. Ex.A17/--:Cold storage Bond, dt.2.4.2011. Ex.A18/--:Postal acknowledgment from 1st defendant. Ex.A19/--:Endorsement of the 2nd defendant on the reverse of Ex.A1 (Marked through the cross examination of D.W.1).

For Defendants: - Nil -

Sd/- Sunkara Sridevi,

P.S.C.J,NRT.

1

IN THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE, NARASARAOPET.

PRESENT: Smt. Sunkara Sridevi,

Principal Senior Civil Judge,

Narasaraopet.

Friday, this the 28th day of OCTOBER, 2022

Original Suit No.481/2015

Between:-

State Bank of India, A Nationalized Bank constituted under the State Bank of India Act, 1955 having branches all over India including one of it’s Branches at Edlapadu, Edlapadu Mandal, Guntur District represented by its Branch Manager, State Bank of India, Edlapadu (Post), Edlapadu Mandal, Guntur District, Chilakaluripet JCJC. ... Plaintif - And -

1. Gattineni Chandraiah, S/o Thirupathaiah, Hindu, aged 50 yrs, Agriculturist, Door No.14-75, Endugumpalem Post, Nadendla Mandal, Guntur District.

2. Sri Vijaya Ganapathi Cold Storage (P) Ltd. Rep. by its Managing Director Pentela Narasimha Murthy, S/o Raghunadh Babu, having its Corporate Office at Door No.1-122, Thatapudi Village, Chilakaluripet Mandal, Guntur District.

3. Pentela Narayana Murthy, S/o Raghunadha Babu, Managing Director, Sri Vijaya Ganapathi Cold Storage (P) Ltd., R/o F.No.B-104, Bhavyas Anandam, Nizampet Road, Quthbullapur, Rangareddy District. Rangareddy District court.

4. Pentela Sailaja, W/o P. Narayana Murthy, Director, Sri Vijaya Ganapathi Cold Storage (P) Ltd., R/o F.No.B-104, Bhavyas Anandam, Nizampet Road, Quthbullapur, Rangareddy District, Rangareddy District Court.

(Defendants 2 to 4 are added as per orders in IA.245/2016, dt.16.7.2019)

... Defendants

Counter Claim in Original Suit No.481/2015

Between:-

Gattineni Chandraiah, S/o Thirupathaiah, Hindu, aged 50 yrs, 2

Agriculturist, Door No.14-75, Endugumpalem Post, Nadendla Mandal, Guntur District. ... Counter claimant/1st Defendant - And -

State Bank of India, A Nationalized Bank constituted under the State Bank of India Act, 1955 having branches all over India including one of it’s Branches at Edlapadu, Edlapadu Mandal, Guntur District represented by its Branch Manager, State Bank of India, Edlapadu (Post), Edlapadu Mandal, Guntur District, Chilakaluripet JCJC.

... Respondent/Plaintif

* * *

This suit is coming on 20-10-2022for final hearing before me in the presence of Sri G.L.V. Ramana Murthy, Advocate for the Plaintif/Respondent in Counter claim and of Sri M. Srinivasa Rao, Advocate for the Defendant No.1/Counter claimant and Sri P. Raja Sekhar, Advocate for the Defendants Nos.2 to 4, upon perusing the material on record, hearing on both sides and having stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a suit filed for a sum of Rs.4,62,443/- along with subsequent interest and costs basing on the loan transactions against the 1st defendant and for a preliminary decree against the defendants 3 and 4 for the suit claim with costs and also a personal decree for the realization of balance amount due against the defendants.

2.There is a counter claim filed by the 1st defendant for a sum of Rs.5,59,274/- along with interest and costs.

3.Initially, the plaintif bank got filed the suit against the sole defendant. Subsequently, as per the orders in IA.245/2016, dt.16.7.2019, the defendants 2 to 4 were impleaded as parties to the proceedings.

4. The brief averments of the plaint are as follows:-

The 1st defendant approached the plaintif bank with an application on 13.4.2011 for a loan of Rs.4,00,000/- and on 25.4.2011 for 3 a loan of Rs.4,60,000/- for his personal purpose against the stock receipts issued by the 2nd defendant in the name of the 1st defendant. The 1st defendant stored his agricultural products i.e., Chillies at the 2nd defendant storage and obtained receipt in his name bearing No.836 on 13.4.2011 for 155 bags and its value of Rs.7,06,800/- and receipt No.951, dt.22.4.2011 for 183 bags and its value of Rs.8,05,200/- on that particular date. The 1st defendant also authorized the bank through his application to inspect the stock periodically to ascertain the quality, quantity and arrangement of storage and also to obtain liquidation of its dues by sale of stocks covered by the said receipt or such part thereof in case of non-payment of loan. He also authorized to debit the advance storage charges and rent demanded by the 2nd defendant. Basing on the documents, the plaintif bank sanctioned the loan to the defendant by pledging the goods by way of depositing the receipt issued by the 2nd defendant with a condition to repay the amount on or before 12.4.2012 and 24.4.2012, if fails, the pledged goods with the bank would be disposed of in public auction to recover the due and charges if any out of the sale proceeds and the defendant also personally liable for the short fall if any after adjustment of the said dues and expenses and released the loan amount through his loan account number 31708965591 and 31720755758. The agreed rate of interest at the rate of 3.75 above rate

SBAR, 8.50% per annum at monthly rests on day balance. Accordingly, the defendant executed the demand promissory notes on 13.4.2011 and 25.4.2011 at Yedlapadu in favour of the plaintif bank. The cold storage was also marked the lien against the goods which were pledged by the defendant in favour of the plaintif bank. The defendants 3 and 4 are extended their equitable mortgage by way of deposit of title deeds with an intention to create 1st charge on the property covered on the title deeds as collateral security for the loan amount to various farmers 4 against the receipts issued by it who kept their produce in the cold storage unit and executed agreement of guarantee dt.2.4.2011. The defendant committed default in repayment within the stipulated time, it demanded the defendant personally through its officers and a letter, but he did not turn up to discharge his obligation. Having no other go, the plaintif bank exercised the powers vested to it and issued a public notice by way of paper publication in Andhra Jyothi Daily dt.23.9.2012 in Guntur

Edition to conduct auction on 27.9.2012. 27 other borrowers approached the plaintif bank and submitted their representation on 26.9.2012 for want of two months time for repayment. Accordingly, the auction was postponed to 29.10.2012. Even though, the defendant did not turn up to discharge his liability, the plaintif bank auctioned the pledged stock in the public auction, on the day-to-day basis commenced from 29.10.2012 and recovered an amount of Rs.2,89,825/- for claim No.1 and

Rs.3,83,946/- for claim No.2 which were credited in the loan accounts of the 1st defendant. Rs.18,499/- and Rs.24,507/- were paid towards tax on behalf of the defendant and the balance amount of Rs.2,89,825/- and

Rs.3,83,946/- were credited to his loan accounts. Inspite of repeated demands, the defendant did not turn up to discharge the balance amount along with interest by making false promises. On that, it issued the demand notices on 12.11.2013 and 9.11.2013 and finally, issued legal notice on 20.12.2013 and it was acknowledged by the defendant and however, there is no result. Hence, the suit. The provisions of Act 4 of 1738 and Act 45 of 1987 are not applicable to the defendant since it is a commercial transaction.

5.The brief averments of the written statement-cum-counter claim filed by the 1st defendant are as follows:- 5

He denied all the allegations in the plaint and contends that the plaintif bank as a pledgee cannot enforce its security except through

Court of law. It highhandedly sold the pledged goods in collusion with the local people and cold storage people without following the procedure laid down under the provisions of Contract Act. The defendant came to know that the plaintif bank did not call the licensed tender holders in participating the public auction. It did not prepare the auction proceedings with regard to stock auctioned while to auction was conducted and auction proceedings were void ab-initio. It is not valid and against the law and not binding on the defendant. The sale conducted by the plaintif is unauthorized and unlawful and as such, the defendant has right to claim damages actually sustained by him under the alleged sale of stock pledged in the cold storage at Chilakaluripet. The account copy is not correct and it is lack of explanation. Notice was not given and the plaintif has no right to pay the rent to the cold storage, other taxes and commissions to the persons, there are no taxes to the agricultural produce and the defendant being an agriculturist exempted under the provisions of Tax Laws.

5(a). The submission of the defendant further shows that the plaintif bank did not furnish the auction proceedings on which date it was held, details of the bags i.e., weight of the bag, the rate per quintal and the number of bags that were auctioned and the amount that was derived and it shows the plaintif bank violated the rules and regulations of SARFAESI proceedings and other Banking Laws. On the date of alleged sale, the value of variety of Teja Chillies as per market value of Rs.8,300/- per quintal. The Teja variety is the highest rate variety and as per the cold storage receipt, there were 338 bags and its total weight is 188.90 quintals. The interest is liable to be scale down since the defendant is an 6 agriculturist and entitled to get the benefits under Debt Relief Laws.

There is no valid pledge of stock between the defendant and the plaintif as such, it has no authority to conduct auction without prior permission, no constructive or actual possession of the stock was delivered to the plaintif bank and the auction conducted by it is not valid and mere promissory notes dt.13.4.2011 and 25.4.2011, the plaintif bank cannot sell away the stock directly. The suit is bad for non-joinder of necessary party i.e., 2nd defendant since the lien was between the plaintif and the 2nd defendant. Both the plaintif and the 2nd defendant colluded together and sold the stock without prior notice to the defendant as such, the suit is not maintainable. As per the market value, each quintal of the Chillies of Rs.8,300/- and the total quintal before the 2nd defendant is 188.90 and its value is 188.90 X 8,300 = Rs.15,68,700/-. The suit claim and the adjustment amount on the date of the alleged auction with regard to two amounts of Rs.10,09,426/-. The said amount is deducted from

Rs.15,68,700/- and the remaining amount is of Rs.5,59,274/-, which is due by the plaintif to the defendant. Hence, the counter claim for recovery of the said amount.

6.The brief averments of the written statement filed by the defendants 2 to 4 are as follows:

They denied most of the allegations as incorrect and contends that none of the documents filed by the plaintif prove that the defendants 3 and 4 have extended their equitable mortgage by way of deposit of title deeds with an intention to create first charge on the property covered in the sale deeds as collateral security for the loan amounts to the various farmers against the receipts issued by the 2nd defendant. As such, the scope of legal liability cannot be stretched to individual capacity by impleading the defendants 3 and 4 as parties to 7 the suit. In fact, there is no cause of action against the defendants 3 and 4 and they have no personal liability and as such the suit is bad for mis- joinder of the defendants 3 and 4. While impleading the defendants 3 and 4, the plaintif bank did not aver how the bank is entitled to proceed against the defendants 3 and 4 in their personal capacity. It was never pleaded either in the body of the plaint or in the cause of action.

6(a). The submission of the defendants show that the defendants 3 and 4 did not create equitable mortgage as alleged. They availed term loan for the 2nd defendant storage in the year 2008 by making equitable mortgage of their individual properties. The extension of mortgage is related to the 2nd defendant term loan only and the same cannot be stretched to otherwise. With regard to the quantum of amount and fixation of amount is at the discretion of bank in which there was no role of the 2nd defendant cold storage. The scope of responsibility of the 2nd defendant to keep the goods that are kept with it in proper condition enabling the plaintif bank to sell in auction by following the procedure. Despite, there was good market rate for the sale of goods as per the market yard, the prevailing rate was between

Rs.5,000/- to Rs.7,000/-, but the bank conducted bogus auction in collusion with the persons who had vested interest in sharing the things for their unlawful gain at the cost of innocent farmers. Had the bank conducted the auction properly and the goods were sold in proper manner, there would have been surplus amount to be returned to the farmers. The plaintif bank failed to discharge its duty to credit the amounts that were derived from the sale of goods into the farmers accounts in collusion for a period of 8 months. Owing to such omissions, the farmers were deprived of interest. Coming to the payment of rents to the 2nd defendant storage, the plaintif bank paid an amount of 8

Rs.30,12,310/- towards rent 8 months after the sale of goods. The payment of rent by the bank to the 2nd defendant goes to show that there is no any fault on the part of the 2nd defendant, as such, either the 2nd defendant or the defendants 3 and 4 cannot be made liable.

Had there been any mistake on the part of the 2nd defendant, the bank would have deduct the amounts while paying the rents. This act of plaintif bank establishes that the 2nd defendant has no liability to pay any amount to it and the suit is filed only to harass the 2nd defendant and with an intention to cover up the wrongful acts of the plaintif bank.

It is evident from the record that the plaintif bank was not bothered to sent any regd. legal notices either to the 2nd defendant or to the defendants 3 and 4 stating their liability and calling for discharge which is fatal to the claim of the plaintif. The frame of the suit is not correct. Hence, the suit is liable to be dismissed with costs.

7.The brief averments of the additional written statement filed by the defendants 2 to 4 are as follows:

It is submitted that the plaintif earlier filed one application with two prayers under Order 1, Rule 10 and Order 6, Rule 17 and inspite of the objections by the defendants with regard to change of cause of action, this court allowed the petition. Aggrieved by the order, the defendants preferred revision and obtained order of stay. Meanwhile, the plaintif amended the plaint including the cause of action. The

Hon'ble High Court directed the plaintif to file separate applications

afresh and as per the direction, separate applications were filed by the plaintif and while allowing the prayer for amendment, this Court in its order dt.16.7.2019 directed the plaintif to amend the plaint without change in the cause of action. But, the plaintif without following the order of the Court adopted the earlier method and amended the plaint 9 which has become null and void, as such, the amended plaint has to be rejected.

8.Basing on the above pleadings, the following issues on 28.10.2016 were settled for trial by the predecessor of this office:-

1. Whether the sale of the stock held by the plaintif bank is legal and valid?

2. Whether the suit claim of the plaintif bank is true, correct, valid and binding on the defendant?

3. Whether the plaintif is entitled for the suit claim amount?

4. Whether the defendant is entitled for counterclaim amount of Rs.5,59,274/-?

5. Whether the plaintif is entitled for decree

against all the defendants?

6. To what relief?

9.On behalf of the plaintif, P.W.1 was examined and Exs.A1 to

A35 were got marked. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B6 were got marked.

10.Heard the counsel for the plaintif and the counsel for the defendants 1 and 2 to 4 respectively.

The counsel for the plaintif who submitted his oral arguments also drawn the attention of this Court about the written arguments filed by the plaintif bank in other batch suits which are also pending on the file of this Court and ripen for Judgment. The entire case of the State

Bank of India in these matters is that the 2nd defendant by keeping the deposit of chillies issued ware-house receipts in favour of the 1st defendant/borrower/farmer and the farmer was introduced to the bank by 10 the 2nd defendant and on an application made by the borrower, loan was sanctioned in his favour and he availed the loan facility, executed promissory note in favour of the 2nd defendant, who in turn transferred the promissory note in favour of the State Bank of India. The defendants 3 and 4 who are the Directors of the 2nd defendant by executing equitable mortgage kept their properties under mortgage, they are jointly and severally liable along with the defendants 1 and 2. Both the defendants 1 and 2 jointly delivered the promissory note along with delivery letter to the plaintif and apart from it, there is an agreement between the parties and the 2nd defendant gave authorization to the plaintif bank that the goods will be rendered to the bank for the purpose of sale if the loan is not discharged by the borrower. The further case of the plaintif that the 2nd defendant executed an agreement of guarantee and thereby made the defendants 2 to 4 jointly and severally liable for the loan accounts of the 1st defendant since the 1st defendant committed default in payment of amount under the loan transactions.

Since the debt is not discharged, the plaintif bank conducted the auction and issued sale notice and the produce was sold in public auction and after deducting the sale amount, still the suit amount is due to the plaintif bank. Hence, filed the suit for recovery of amount.

10(a). The counsel for the plaintif also drawn the attention of this

Court by referring the citation reported in AIR 1963 AP 348 between

M/s. Bezonji Byramji and Co., Jalna and others Vs. Central Bank

of India Ltd., Bombay wherein the Section of law makes it clear that all the defendants are jointly liable to pay the suit amount. He also submitted another citation reported in 2002 (0) SCJ Online (AP) 525,

between Indur Finance Corporation and Partnership Firm Vs.

Gopal and Company and others wherein the observation by their 11

Lordships that all the defendants are liable to pay the suit amount. The arguments of the plaintif went on showing the claim of the 1st defendant for his relief of counter claim wherein he admitted the sale of goods that are pledged to the bank and the sale is made as the borrower failed to pay the debt and if at all the borrower paid the debt, there is no need for the bank to put the property for sale. Therefore, it should be inferred that the 1st defendant failed to pay the debt. The counsel for the plaintif also drawn the attention of this Court by referring the provision under Section 176 of Contract Act, wherein says that the pawnee will have to issue reasonable notice to the pawnor expressing his intention to sell the property. There is no specified form of notice and the consequence of invalid sale would be that the pledge subsist and the pawnor retains the right of redemption, but the borrower in this case, not filed any suit for redemption and for damages as observed by their Lordships reported in

SA.No.674/1996, dt.6.4.2010, between Sri K.V. Sohan Vs. Sri D.

Krishna.

10(b). Per contra, the counsel for the defendants 1 and 2 to 4 respectively in their arguments reiterated the pleadings. The counsel for the 1st defendant in his arguments submitted that as per the orders in

IA.245/2016, no permission was granted to amend the cause of action in

the original plaint, but contrary to the order, in the neat copy of the plaint, the cause of action was added. There is no date of auction, place of auction in the plaint. The particulars of upset price to conduct sale alleged by the plaintif are all silent in the plaint. The promissory notes under Ex.A3 is dt.13.4.2011 and Ex.A14, dt.25.4.2011, whereas the suit was filed on 28.4.2014, which is more than three years and on that score, the suit is barred by limitation and liable to be dismissed. The counsel for the 1st defendant also raised the discrepancy about the 12 issuance of notice under Section 176 of Contract Act, the said notice was not issued in the present case made the suit not maintainable against the defendants. The alleged notice that was marked on behalf of the plaintif is not the statutory notice under Section 176 of Indian Contract

Act in order to canvas that the sale proceedings conducted by the plaintif bank is valid under law. The counsel for the 1st defendant also drawn the attention of this Court by referring the provision under Section 178-A of Contract Act. He also placed reliance on the citation reported in

1946 BOMLR 828, between The Official Assignee Vs. Madholal

Sindhu, requested the Court to allow the counter claim.

10(c). The counsel for the defendants 2 to 4 in his arguments submitted that originally, the suit was filed against the 1st defendant only. Later, by moving an application in IA.245/2016, the defendants 2 to 4 were impleaded wherein a specific direction not to touch the cause of action. However, the plaintif bank without complying the order in

IA.245/2016 filed its neat copy by amending the cause of action. There

is no cause of action to file the suit against the defendants 2 to 4 and as per the contention of the defendants in their additional written statement, the neat copy of the plaint has to be rejected. He also drawn the attention of this Court by referring Exs.A32 and A33 which were marked subject to objection. Though the defendants filed an application to de-exhibit the said documents, the said application was dismissed with a finding that it will be decided at the stage of Judgment. Those documents were not executed by the defendants and they were created, and they were not confronted to D.W.3 who is the proper person to prove the contents. The other line of his argument is that there is no pleading of damaged stock. If really, the defendants 2 to 4 are liable for suit claim as impleaded by the plaintif, the bank would have not paid 13

Rs.30,00,000/- towards rent and it can adjust the said amount towards the due of suit claim. In the absence of any such action on the part of the plaintif bank, it is vivid that the impleadment of the defendants 2 to 4 is only an after thought. His argument concludes that if at all the auction was conducted properly, the question of due of amount either against the 1st defendant or the defendants 2 to 4 would never arise.

10(d). The counsel for the plaintif by way of reply submitted that

Ex.A31 i.e., agreement of guarantee is enough to show the liability of the defendants 2 to 4.

Issue No.1:

11.The case of the plaintif bank basing on the evidence of P.W.1 coupled with Exs.A1 to A35 is that the 1st defendant as borrower, approached the plaintif bank for sanction of loans against the stock receipts issued by the 2nd defendant in his favour for the produce of

Mirchi kept in their cold storage for safe custody and availed loan of

Rs.4,00,000/- on 13.4.2011 and Rs.4,60,000/- on 25.4.2011 agreed for the rate of interest as claimed by the plaintif bank and executed the demand promissory notes, D.P. note, take delivery letters and all the other necessary documents for both the loan transactions. The defendants 3 and 4 extended their equitable mortgage by way of deposit of title deeds with an intention to create first charge on the property covered under the sale deeds as collateral security, also executed agreement of guarantee on 2.4.2011. Though the defendant agreed to repay the said amounts under the respective loans on or before 12th April, 2012 and 24th April, 2012 respectively, he committed default and did not respond even after the issuance of notices on 12.11.2013 and 9.11.2013 respectively, made the plaintif bank issued publication of sale of the 14 pledged goods and conducted public auction and credited the same in the loan accounts of the defendant and even after the sale of pledged goods, the 1st defendant is still liable for the balance loan amounts, as per the statement of accounts, got issued a final notice on 20.12.2013 filed the present suit against the 1st defendant initially for personal decree and impleaded the defendants 2 to 4 subsequently seeking a preliminary decree against the property of the defendants 3 and 4 covered under mortgage.

12.The case of the 1st defendant basing on the evidence of

D.Ws.1 and 2 coupled with Exs.B1 to B3 is that the plaintif bank has not followed the procedure and the guidelines given by the banking authorities and without following the procedure, conducted the auction which is void ab-initio and on the alleged date of auction, the value of

Chillies which were kept in cold storage as per the market value is of

Rs.8,300/- per quintal and the plaintif bank is liable to pay a sum of

Rs.5,59,274/- to the 1st defendant towards counter claim after deducting the balance loan amount.

13.The case of the 2nd defendant basing on the evidence of D.W.3 coupled with Exs.B4 to B6 is that the defendants 2 to 4 are not at all liable for the loan amount and there is no cause of action against the defendants 3 and 4 as they have no personal liability, they availed term loan for the 2nd defendant in the year 2008 by making equitable mortgage of their individual properties and extension of mortgage related to the 2nd defendant term loan only and it cannot be stretched to the present transaction. The responsibility of the 2nd defendant is only to keep the goods in proper condition enabling the plaintif bank to sell in auction by following the procedure and however, the bank 15 conducted bogus auction and shared the things for unlawful gain at the cost of innocent farmers and the payment of rent to the 2nd defendant shows that there is no any fault on the part of the 2nd defendant storage.

14.Since the plaintif got filed the present suit contending that the defendants 1 to 4 by agreeing the terms of loan executed all the necessary documents in favour of the plaintif bank and pledged the goods before the plaintif bank and kept the goods before the 2nd defendant by the 1st defendant who executed the promissory notes in favour of the 2nd defendant who in turn endorsed the said promissory notes in favour of the plaintif bank made the defendants 1 to 4 jointly and severally liable for the suit amount which is the balance due under the loan accounts of the 1st defendant, so also the defendants 3 and 4 are liable for preliminary decree over the mortgaged properties, the burden is on the plaintif not only to prove the loan transactions of the 1st defendant, but also the liability of the defendants 2 to 4 on par with the 1st defendant in order to claim the relief against the defendants 1 to 4.

The plaintif in order to discharge its burden examined the one and only witness on its behalf, it is none other than the Branch Manager of the plaintif bank as P.W.1. He filed his chief affidavit reiterating the contents of the plaint. Through this witness, 33 documents were marked as Exs.A1 to A33.

15.Before adverting to the evidence of the plaintif through P.W.1, let us see the argument submitted by the counsel for the plaintif, initially, submitted a citation reported in AIR 1987 Orissa 67, between Umesh

Chandra Misra Vs. State Bank of India and another. His submission shows that in case of banks, the Branch Manager who is the present 16

Manager can give evidence basing upon the record and in all times, the then Branch Manager who was present at the time of sanctioning the loan need be examined. The observation by their Lordships in the above case law refers the provision under Order XXIX, Rule 1 of C.P.C reads as follows:

“Subscription and verification of pleading. In

suits by or against a corporation, any pleading may

be signed and verified on behalf of the corporation by

the Secretary or by any Director or the other

Principal Officer of the corporation who is able to

depose to the facts of the case.”

Their Lordships also referred the observations reported in various journals wherein it was held that –--

“The suit has been instituted in the name of

Body Corporate, namely, the State Bank of India,

which personally cannot act and the plaint has to be

presented by its agent and it could not find a more

competent person to present the same in Court than

the Branch Manager.”

16.The citation submitted by the counsel for the plaintif is absolutely not in dispute. The reasons best known to the plaintif his argument went on submitting the capability of P.W.1 to give evidence on behalf of the plaintif bank which is never and ever objected by the contesting defendants at any point of time. So, absolutely, the point that was urged by the counsel for the plaintif to consider the evidence of

P.W.1 is not at all in dispute. The defendants no where pointed out any ambiguity with reference to the locus standi of P.W.1 to depose evidence pertaining to the loan transaction of the year 2011.

17

17.Now it is relevant to refer the case of the plaintif initially when it got filed the suit against the sole defendant (1st defendant).

The entire plaint is completely silent either about the liability of the 2nd defendant storage or the defendants 3 and 4. However, as per the orders in IA.245/2016, dt.16.7.2019, the defendants 2 to 4 were added as parties. The order in IA.245/2016 specifically shows that the plaintif is precluded from making any amendment in the cause of action paragraph. The counsel for the defendants very much concentrated about the order in IA.245/2016, wherein the observation of the Court not to touch the cause of action paragraph which was violated by the plaintif bank filed its neat copy of the plaint by amending the cause of action paragraph. The counsel for the defendants 2 to 4 also highlighted the contents of the additional written statement on the said factum and sought for the rejection of neat copy of the plaint. Evidently, there is a specific order in IA.245/2016, directing the plaintif not to touch the cause of action while amending the plaint, and the said order became final as no appeal or revision was preferred and not brought the same to the knowledge of this Court by the counsel for the plaintif at the time of his arguments. Contrary to the orders in IA.245/2016, the neat copy of the plaint available in the suit record shows the cause of action paragraph was amended contrary to the original plaint. There is no plausible explanation from the counsel for the plaintif, by way of reply when the defendants vehemently opposed to consider the contents of neat copy of the plaint which is filed contrary to the orders passed in IA.245/2016.

So, the submission of the defendants 2 to 4 on their behalf that the neat copy of the plaintif got filed by the plaintif bank is contrary to the orders in IA.245/2016 is not legally valid and it has to be rejected is quite sustainable. In the absence of any order in IA.245/2016 filing the neat copy of the plaint contrary to the original pleadings is nothing but 18 violation of the procedure and it cannot be permitted at any cost and it should be reflected in toto. Here the case of the defendants 2 to 4 is that there is no cause of action in the entire plaint pleadings against the defendants 2 to 4 and no notice was served to them before filing of the suit or before conducting auction after the 1st defendant committed default in payment of loan account. The role of the 2nd defendant is only limited and it has to protect the quality of Mirchi that was kept before it for the plaintif bank and it has to be handed over to the person who produced the stock receipt and except that it is not liable for any other transaction. The 2nd defendant which is a cold storage represented by its Managing partner, the defendants 3 and 4 being the Managing partners and partner of the 2nd defendant storage respectively in their personal capacity were also shown as defendants in the subsequent pleadings after amendment as per the orders in IA.245/2016. Except in the Paragraph at Page No.2 that the defendants 3 and 4 extended their equitable mortgage and executed an agreement of guarantee on 2.4.2011, there are no other particulars including the alleged cause of action against the defendants 2 to 4 to bring them as proper and necessary parties for the present suit transaction. The counsel for the defendants 2 to 4 in his arguments concentrated on the said aspect, for which the plaintif replied that the agreement of guarantee under Ex.A31 is enough to prove the liability of the defendants 2 to 4 which is co- extensive with that of the 1st defendant. So, let us see the documents that were exhibited on behalf of the plaintif whether shows any liability of the defendants 2 to 4 as guarantors on par with the 1st defendant for the present transaction.

18.Through P.W.1, the plaintif bank got marked 33 documents as Exs.A1 to A33. Out of them, Ex.A1 and Ex.A12 are the loan 19 applications submitted by the 1st defendant to the plaintif bank basing on the ware-house receipts of the 2nd defendant. Admittedly, the applications of the 1 st defendant under Exs.A1 and A12 before the plaintif bank are not in dispute and it is squarely admitted by the 1st defendant. Exs.A2 and A13 are the notices of the Bank lien on specified goods which were issued by the plaintif bank and signed by the 2nd defendant through its authorized signatory. These documents are also not in dispute and the 2nd defendant admitted the pledge of produce covered under the ware-house receipts before the plaintif bank by the 1st defendant. Exs.A3 and A14 are the two demand promissory notes.

They were executed by the 1st defendant in favour of the plaintif bank.

The Demand promissory note delivery letters were also executed by the 1st defendant beneath the demand promissory notes. Except the 1st defendant, neither the 2nd defendant nor the defendants 3 and 4 signed on Exs.A3 and A14. Here it is pertinent to refer the contention of the plaintif bank that the 1st defendant executed the demand promissory notes in favour of the 2nd defendant who in turn endorsed the same in favour of the plaintif bank, to treat it as holder in due course, but it is absolutely not sustainable in view of the contents covered under

Exs.A3 and A14. The 3rd defendant who was examined as D.W.3 refused to admit the endorsements on the reverse of Exs.A3 and A14.

The entire contention of the plaintif bank is that the liability of the 2nd defendant is co-extensive with that of the 1st defendant since they both executed Exs.A3 and A14 and delivered the said documents to the plaintif bank. But the same is absolutely not sustainable as there are no such contents could be seen on Exs.A3 and A14 to fasten the liability against the 2nd defendant. The next documents that were exhibited on behalf of the plaintif bank is Exs.A4 and A15. They are ware-house receipt undertaking-cum-take delivery letters signed by the 1st 20 defendant. Exs.A5 and A16 are the arrangement letters signed by the 1st defendant as borrower in favour of the plaintif bank. Exs.A6 and A17 are the other documents executed by the 1st defendant in favour of the plaintif bank styled as ware-house receipt demand loan control cards.

The execution of Exs.A3 to A6 and A14 to A17 by the 1st defendant are all not in dispute. The one and only contention that was raised by the 1st defendant is that the plaintif bank has not followed the procedure

before conducting sale and it is bad under law and the entire procedure

was vitiated in view of the illegality committed by the plaintif bank.

The 1st defendant mainly concentrated about the procedure covered under Section 176 of the Contract Act which was not followed by the plaintif bank, entitled him to get dismissal of the suit on the ground that the sale is not valid and proper and thereby not binding on the 1st defendant.

19.Before analyzing the point that was urged by the 1st defendant, it is very much essential to refer the document under Ex.A7, dt.12.11.2013 and Ex.A18, dt.9.11.2013 demand notices sent by the plaintif bank to the 1st defendant on those respective dates. The contents of Exs.A7 and A18 read that the 1st defendant availed loans on 13.4.2011 and 25.4.2011 respectively and so far not repaid the amount and requested him to come and repay the loan amount or otherwise, the 1st defendant is liable for the action going to initiate by the plaintif bank. According to the case of the plaintif bank, it sent the statutory notice covered under Section 176 of the Indian Contract Act and it complied the mandatory provision. So, the argument of the 1st defendant is only a futile exercise. whereas, the 1st defendant contended that except the copy of the notices under Exs.A7 and A18, there are no postal receipts or postal acknowledgments to show the proof 21 of service in order to canvas that the plaintif bank complied the provisions under Section 176 of the Indian Contract Act. In this context, it is relevant to refer the rival contentions coupled with the citations relied upon by the respective parties.

20.Before adverting to the proposition of law reported in various journals, here it is relevant to refer the provision under Section 176 of

Indian Contract Act. Section 176 of the Act deals with the right of pawnee or pledgee in the case of default by the pledger. The Section is in these terms “if the pawnor makes default in

payment of the debt, or performance; at the

stipulated time of the promise, in respect of

which the goods were pledged, the pawnee

may bring a suit against the pawnor upon the

debt or promise, and retain the goods

pledged as a collateral security; or he may

sell the thing pledged, on giving the pawnor

reasonable notice of the sale.

If the proceeds of such sale are less

than the amount due in respect of the debt or

promise, the pawnor is still liable to pay the

balance. If the proceeds of the sale are

greater than the amount so due, the pawnee

shall pay over the surplus to the pawnor.”

21.Before adverting to the rival contentions in respect of the notice under Section 176 of the Indian Contract Act whether complied by the plaintif bank before conducting auction of the pledged goods or not, 22 here it is also relevant to refer the relevant terms covered under the

Indian Contract Act which are applicable to the status of the plaintif and defendants to the present suit transaction. Section 172 of the

Contract Act defines the terms pledge, pawnor and pawnee. The bailment of goods as security for payment of a debt or performance of a promise is called ‘pledge’. The bailor is in this case, called the ‘pawnor’. The bailee is called the ‘pawnee’.

22.Coming to the case on hand, here the 1st defendant as security for payment of loan kept the goods of chillies before the 2nd defendant cold storage and obtained the ware-house receipts which were kept with the plaintif bank towards security for payment of debt comes under pledge. The 1st defendant is the bailor/pawnor and the plaintif bank is the bailee/pawnee. Now coming to the provision under Section 176 of Contract Act, as the 1st defendant committed default in payment of debt as agreed by him even in his evidence, whether made the plaintif bank to proceed against the goods pledged and issued any reasonable notice of sale to the 1st defendant or not. According to the case of the plaintif, it got issued the said notice to the 1st defendant. But according to the 1st defendant, no such notice was served on the 1st defendant and on that score, the claim of the plaintif would go. Admittedly, no postal receipt or postal acknowledgment showing the service of notice under

Exs.A7 and A18 to the 1st defendant is exhibited. The same was also admitted by P.W.1 in his cross-examination. Now it is relevant to refer the citation submitted by the counsel for the plaintif reported in

SA.No.674/1996, dt.6.4.2010, between Sri K.V. Sohan Vs. Sri D.

Krishna wherein the observation by their Lordships of Hon’ble High Court of Kerala when referred the citation reported in AIR 2006 Madhya

Pradesh 35, between Sunderlal Saraf Vs. Subhas Chand Jain, 23 wherein it was held as follows:

“Since this Section does not speak about the

sending the notice of intending sale on a particular

date, time and place are not mentioned in the notice

would not render the said notice ineffective or in

contravention to Section 176 of the Act. According to

me, since the pawnee (defendant), who had given a

reasonable notice under Section 176 of the sale was

competent to sell the pawned articles at anytime after

sending the notice. Merely because 7 days notice was

given by pawnee (defendant) would not ipso facto gets

the notice invalid. Since no particular time has been

prescribed in Section 176 of the Contract Act.”

23.The observation by their Lordships when applied to the case on hand, the same is not applicable to the case of the plaintif. In this case, there is no proof of service of Exs.A7 and A18 notices to the 1st defendant in order to show that the plaintif bank complied the provision under Section 176 of the Contract Act that it has given a reasonable notice to the 1st defendant before conducting auction. Mere marking the notices under Exs.A7 and A18 which are the office copies which do not show any proof of service to show that the plaintif bank served the said notices on the 1st defendant to canvas that it complied the provision under Section 176 of the Contract Act before conducting auction. Though the defendants raised several contentions that there are no particulars in the plaint that when the date of auction was given and when the auction was conducted are all not sustainable in view of the observation by this

Lordships in the above case law that they are all not found in Section 176 of the Contract Act to comply the provision of reasonable notice. But in this case, there is no such service of notice to the 1st defendant in order to 24 canvas by the plaintif bank that it got issued the notice before conducting auction to comply the provision under Section 176 of the

Contract Act. So, the rival contentions on the factum of issuance of notice to comply the provision under Section 176 of the Indian Contract Act is not complied by the plaintif bank before the sale of pawned articles.

24.Here it is also relevant to refer the other set of notice that was exhibited by the plaintif through its Manager as Exs.A8 and A19.

They are the other office copies of legal notices dt.20.12.2013 got issued by the plaintif through its Advocate. It reads that the plaintif bank auctioned the pawned articles and credited an amount of Rs.2,89,825/- and Rs.3,83,946/- respectively in the loan accounts of the 1st defendant and the 1st defendant is liable for the balance amount as specified in the notices. Exs.A9, A10, A20 and A21 are the respective postal receipts and postal acknowledgments for Exs.A8 and A19 notices respectively. The counsel for the plaintif though submitted his argument along with the settled ratio reported in the case law referred in the preceding paragraph, did not clarify which notice comes under reasonable notice to comply the mandatory provision of Section 176 of the Contract Act to treat the said notice as a reasonable notice to the 1st defendant.

Admittedly, either the 1st notice under Ex.A7 or Ex.A18, the 2nd notice under Ex.A8 or Ex.A19 does not specify the basic particulars either about the intention of the plaintif bank to conduct sale of pawned articles due to the default committed by the 1st defendant as borrower or the particulars of the date of auction or place of auction, seeking the participation of the 1st defendant by giving a reasonable opportunity.

P.W.1 in his cross-examination deposed that the sale was commenced on 29.10.2012 and continued for two months. The said statement of

P.W.1 is completely silent in Exs.A7, A8 and Exs.A18 and A19 to show the 25 intention of the plaintif bank to inform the date of the alleged auction to the 1st defendant by giving a reasonable opportunity to discharge the loan before the sale of pawned articles. In this context, it is relevant to refer the citation submitted by the counsel for the 1st defendant reported in 2 nd Appeal No.593 of 1954, decided on 29.1.1965, between

Prabhat Bank Ltd., Vs. Babu Ram, wherein it was observed that –--

“The sale of securities by the appellant bank

without reasonable notice to the respondent was bad

and was not binding on him. What is contemplated

by Section 176 is not merely a notice, but a

“reasonable” notice, meaning thereby a notice of

intended sale of the security by the creditor within a

certain date so as to afford an opportunity to the

debtor to pay up the amount within the time

mentioned in the notice. No such notice was ever

given by the appellant to the respondent. There can

thus he no escape from the conclusion that the sale of

the securities by the appellant was against law and

not binding on the respondent.”

25.The observation by their Lordships is aptly applicable to the case on hand. In this case also, there is no reasonable notice within the meaning of Section 176, thereby a notice of intended sale of the security by the creditor within a certain date so as to aford an opportunity to the 1st defendant to pay up the amount within the time mentioned in the notice. In another citation reported in AIR 1947 Bombay 217, between the Official Assignee Vs. Madholal Sindhu, wherein the observation by their Lordships that ---

“there is no such saving clause in Section 176,

and in my opinion its provisions are mandatory, and

it is not opened the parties to contract themselves out

26

of those provisions. The notice that is to be given to

the pledger of the intended sale by the pledgee is a

special protection which the statute has given to the

pledger and parties cannot agree that in the case of

any pledge the pledgee may sell the pledged articles

without notice to the pledger.”

26.The observation by their Lordships similarly applicable to the case on hand. Here the plaintif who got filed the suit contending that the 1st defendant committed default and inspite of repeated demands, when did not turn up to repay the amount, as a last resort the plaintif bank got issued the legal notices on 12.11.2013 under Ex.A7 and on 9.11.2013 under Ex.A18 proceeded with the auction and conducted the sale. Finally it issued the notice under Exs.A8 and A19 on 20.12.2013 wherein did not refer the particulars of any earlier notices which are said to be the reasonable notice within the meaning of Section 176 of Contract Act. Not only that the service of notice to the 1st defendant for Exs.A7 or A18 is also not produced to show that it complied the provision under Section 176 of the Contract Act to proceed against the produce of Mirchi to exercise its right as pawnee to recover the amount by afording an opportunity to the 1st defendant to repay the loan which was not done by it. So, in view of the above discussion, particularly basing on the documents under Exs.A7, A8, A18 and A19, it is enough to conclude that there is no reasonable notice to the 1st defendant from the plaintif bank to comply the provision under Section 176 of the Contract Act.

27.Now it is relevant to refer the other contentions raised by the defendants 2 to 4 particularly about the liability of the defendants 3 and

4. And according to them, the defendants 3 and 4 did not create any equitable mortgage as averred by the plaintif bank and the said 27 mortgage was only in respect of 2nd defendant’s term loan in the year 2008 and it was extended in the year 2009 and later, the same was closed. The plaintif bank has no right to exercise lien under Section 171 of Indian Contract Act by taking advantage of the documents lying before it pertaining to the other transaction which was already closed. The plaintif bank though impleaded one of the paragraphs at Page No.2 of the plaint after amendment, did not refer any of the particulars about the extension of equitable mortgage executed by the defendants 3 and 4 in the year 2008 and the application of the said right of lien for the present disputed transaction. However, it got marked Exs.A23 to A30 on its behalf to prove its further contention. Exs.A23 and A24 are the notarized copies of the letter of confirmation for creation of mortgage by deposit of title deeds. They were executed by the defendants 3 and 4 on behalf of the 2nd defendant firm as mortgagors for the term loan of Rs.1,85,00,000/- on 17.4.2008 and the list of title deeds referred in those documents are

Exs.A25 to A30 i.e., notarized copies of sale deeds in the name of the defendants 3 and 4. The execution of Exs.A23 and A24 by depositing the sale deeds under Exs.A25 to A30 by the defendants 3 and 4 for the term loan of the 2nd defendant in the year 2008 is absolutely not in dispute.

The same was admitted by the defendants 2 to 4 on their behalf.

However, their contention is that the said loan was already completed and it was closed in the year 2015 and the plaintif bank has no right to extend lien over the sale deeds of the defendants 3 and 4 for the present transaction covered under Exs.A1 and A12. The 3rd defendant who was examined as D.W.3 got marked Exs.B4 to B6 on their behalf. Ex.B4 is the certified copy of the letter issued by the plaintif bank on 26.8.2015 certifying that the 2nd defendant had availed term loan and repaid the entire amount and the loan was closed on 13.8.2015. Ex.B5 is the statement of account of the 2nd defendant before the plaintif bank 28 wherein shows the entries from 17.4.2008 to 13.8.2015 and the entry in the last page showed the closing balance as ‘zero’. By relying on the documents under Exs.B4 and B5, the defendants 2 to 4 contend before this Court that the documents under Exs.A23 and A24 are not at all pertaining to the present loan transaction and the plaintif bank cannot exercise its right of lien over the properties of the defendants 3 and 4.

In this context, it is relevant to refer the cross-examination of P.W.1 who made certain material admissions. His evidence shows that the loans given to the farmers upto 2010 are closed in their bank. The term loan of the 2nd defendant was closed. He also admitted that the defendants 3 and 4 filed a Writ petition No.30548 of 2016 on the file of Hon’ble High

Court of Andhra Pradesh for a direction to the plaintif bank to return the documents wherein they filed their counter. Admittedly, the plaintif bank did not file any extension of mortgage under Exs.A23 and A24. There is no evidence on its behalf to show that the liability of the defendants under Exs.A23 and A24 is still continuing even after the closure of the term loan of the 2nd defendant in the year 2015. The cross-examination of D.W.3 does not show any such contention of the plaintif bank to fasten the liability against the defendants 3 and 4 basing on the equitable mortgage of the year 2008 pertaining to the term loan of the 2nd defendant which was closed in the year 2015. In this context, it is relevant to refer the citation submitted by the counsel for the defendants 3 and 4 reported in Writ Petition No.32 of 2022 between Mr. Sunil

Vs. Union Bank of India, through its Branch Manager, Office at

Near Education Board Bhawan, Civil Lines, Nagpur, decided on

13.6.2022on the file of Hon’ble High Court of Judicature at Bombay at

Nagapur. Wherein, the observation by their Lordships while referring the provision of Section 171 of the Indian Contract Act which reads as under :

29

“Section 171: General Lien of

Bankers, Factors, Wharfingers, attorneys

and policy brokers - Bankers, Factors,

Wharfingers, attorneys of a High Court and policy brokers may, in the absence of contract to the contrary, retain as a security for a general balance of account, any goods bailed to them but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that efect.

Lien means a right of common law in a person to retain that which is rightfully and continuously in their possession belonging to another until the present and accrued claims (of the person in possession) are satisfied.”

28.Their Lordships in their observation held that the provision, therefore indicates that the right to retain goods bailed is based on contract and retaining the same in the absence of contract is not permissible. Their Lordships referred an observation of the Division Bench in the case of Surendra, S/o Laxman Nikose Vs. Chief Manager and

Authorized Officer, State Bank of India, Nagpur reported in

2013(5) Mh.L.J. 283 held that –

“Bank cannot exercise its right of general

lien over the Title deeds deposited by the

petitioner after the entire loan amount was fully

repaid by the petitioner.”

30

It is further held in Paragraph No.10 that –-

“The only right that has been recognized

with regard to the goods bailed is the right of

general lien of a banker to retain as security for

a general balance of account any goods bailed to

them. It is therefore, clear that such right of

general lien cannot be extended by a banker for

any other purpose after the general balance of

account has been cleared by the person bailing

the goods.”

29.Basing on the above observation, their Lordships held that it is open for the Bank to take steps to secure its interest regarding the said loan account. However, by invoking the provision of Section 171 of the Contract Act, it has no right to withhold the title deeds especially, when there is no relationship between the petitioner and the respondent as a banker and customer. Said act of the bank is not justifiable, the bank has no right of general lien over the title deeds deposited by the petitioner after the entire loan amount was fully satisfied by the petitioner. The observation by their Lordships is aptly applicable to the case on hand. In this case, except the amended pleadings and the documents under Exs.A23 and A24 pertaining to the term loan of the 2nd defendant in the year 2008, there are no material particulars about the relationship of the plaintif bank with the defendants 3 and 4 in the loan transaction of the 1st defendant. There is no nexus between the claim of the plaintif bank with the documents executed by the defendants 3 and 4 as mortgagors in the term loan of the 2nd defendant which was closed in the year 2015. Basing on the observation by their Lordships in the above case law, the plaintif bank has no right to fasten the liability against the defendants 3 and 4 by exercising the general lien over the 31 title deeds of the defendants 3 and 4. Thus, the contention of the defendants 3 and 4 is quite sustainable that the claim against the defendants 3 and 4 basing on the title deeds of the defendants 3 and 4 in another loan transaction which was closed in the year 2015 is not justifiable.

30.Now let us see the other contention of the defendants 2 to 4 particularly, about their liability towards the loan transaction. According to them, the 2nd defendant is responsible only for the safe custody of the pawned articles and by keeping the goods in proper condition, they were delivered to the plaintif bank. It has no role in the repayment and the said fact is well known to the plaintif bank and that is the reason, it paid an amount of Rs.30,12,310/- towards rent of the 2nd defendant and if really, the 2nd defendant is liable for the suit transaction, it ought to have remit the said amount in the loan account of the 1st defendant. Per contra, the plaintif got marked Ex.A31 on its behalf and it is an agreement of guarantee dt.2.4.2011 executed by the 2nd defendant and signed by the defendants 3 and 4 on behalf of the 2nd defendant. A perusal of the contents of the said agreement particularly, clause No.3, in

Page No.2 reads as follows:

“The guarantor hereby declared that the guarantor shall be the continuing guarantee and shall not be considered as cancelled or in any way efected the fact that at any time the said amount may show no liability against the borrower (customers of the cold storage), but shall continue to be the guarantee and remained in operation in respect of subsequent transaction.” 32

31.The above referred clause clearly and clinchingly shows the guarantee of the 2nd defendant for the liability of its customers as a guarantor which is co-extensive with that of the borrowers, that invariably made the 2nd defendant represented by the defendants 3 and 4 liable as guarantors for the transaction of its customers i.e., the 1st defendant who is one of the customers of cold storage. The contention of the plaintif bank that basing on Ex.A31, the defendants 2 to 4 are liable for the loan transaction of the 1st defendant is justifiable and as guarantors, they are jointly and severally liable for the transaction of the 1st defendant. But, coming to the case on hand, the entire plaint which was filed in the year 2015 for the loan transaction of 2011 is completely silent about the liability of the 2nd defendant or its authorized signatories as guarantors under Ex.A31. Admittedly, no notice was served to any one of the defendants 1 to 4 before the institution of the suit intimating the default committed by the 1st defendant and their right to conduct sale of pawned articles by following the provisions of Contract Act. Admittedly, there are no averments in the plaint till 2019 i.e, the impleadment of the defendants 2 to 4 as parties to the proceedings and their liability and any cause of action against them to institute the suit. By computing the period of limitation from the date of availing the loan transaction in the year 2011 till the impleadment of the defendants 2 to 4, which is more than 5 years to the date of transaction also shows that the plaintif bank not approached the Court in time seeking relief against the defendants 2 to 4. So, in all, the contention of the defendants 2 to 4 is quite sustainable that the plaintif bank failed to show any cause of action against them to fasten their liability under the loan transaction of the 1st defendant. Here it is also relevant to refer the documents under Exs.A32 and A33 which are notarized photo copies. Both the documents were marked subject to objection. The counsel for the defendants submitted 33 that they earlier moved an application for de-marking of Exs.A32 and

A33 and they were dismissed with a finding that they will be decided at the time of the Judgment. Here, the submission of the defendants 2 to 4 through their counsel is that Exs.A32 and A33 are only photo copies and they were marked subject to objection and they are not at all admissible in evidence and those documents were not executed by them and they were not confronted even to D.W.3 at the time of cross-examination to prove the contents. There is no submission of reply from the plaintif even to explain how those documents are admissible in evidence being photostat copies of notary signatures. Though the endorsement on those documents show that they were compared with the originals, they were not produced at the time of marking. Since the photostat copies of the notarized documents are not admissible in evidence, as they do not come under the category of secondary evidence. Hence, the objection raised by the defendants is sustainable and those documents are not admissible and they are de-exhibited as prayed for. In all, the contention of the defendants 2 to 4 that they are not liable for the suit transaction is absolutely sustainable, and defendants 2 to 4 are not liable for the suit amount.

32.Now let us see the other point that was urged by the defendants particularly with reference to the public auction and fixation of upset price by the plaintif bank contrary to the principles of natural justice and procedure. According to the 1st defendant, the pledge of stock

before the 2nd defendant is 188.90 quintals of Teja variety Mirchi under

ware-house receipts bearing Nos.836 and 951. The said contention is also not in dispute and the same was also admitted by the plaintif bank through its witness P.W.1. The 1st defendant examined the Selection

Grade Secretary Market Yard Committee, Guntur as D.W.2 and through 34 this witness got marked the price list of Mirchi i.e., Teaj variety kept in cold storage from 28.10.2012 to 14.11.2012, from 1.11.2012 to 31.12.2012, from 1.6.2013 to 31.7.2013. Those price lists reflect the price at maximum and minimum which is in between Rs.8,600/- to

Rs.5,000/- respectively in those days. The case of the 1st defendant is that the plaintif bank without following the procedure and without furnishing the particulars of the auction and the upset price got mentioned the amount of auction as Rs.2,89,825/- from the 1st claim and

Rs.3,83,946/- from the 2nd claim show the sale of produce is bad under law. The evidence of D.W.2 remains unchallenged though the counsel for the plaintif cross-examined the witness that the price list prepared by the market yard committed is not the authoritative list and it was prepared according to convenience which was denied by the witness. However, the cross-examination of P.W.1 i.e., present Branch Manager shows that they have not recorded the details of variety of stock, the stock sold and price anywhere. They have not mentioned the upset price fixed at the time of auction in the plaint or in the chief affidavit. The details of quintals and how many bags sold in auction and how much amount was realized are not mentioned in the plaint. Similarly, his evidence shows as on the date of auction, the Teja variety Mirchi was between Rs.5,500/- to Rs.8,000/-. There is no evidence or not even in a single whisper in the entire pleadings to show that when the auction was conducted and what was the amount fixed per quintal to realize the amount out of the public auction from the pledged stock of the 1st defendant even to show that the plaintif bank was not acted arbitrarily to realize the amount covered under Exs.A1 and A12 loan transactions. When P.W.1 stated the rate of

Teja Mirchi as on the date of auction was Rs.5,500/- to Rs.8,000/-, which is similarly reflected under Exs.B1 to B3, it is for the plaintif to discharge its burden that what was the amount realized out of the stock which is 35 188.90 quintals of Teja Mirchi kept by the 1st defendant by way of pledge

before the plaintif bank towards the security for the loan transactions.

33.In this context, it is also relevant to refer the citation submitted by the counsel for the defendants reported in 2012 (5) ALT 39

(SC), between Ram Kishun and others Vs. State of U.P. and

others, wherein the observation by their Lordships of Hon’ble Apex Court that “fundamental error in procedure or fraud vitiates sale”. In another citation reported in 2009 (3) ALT 552, between Sri Venkateshwara

Rice Mill Vs. Andhra Pradesh State Financial Corporation and

others, wherein the observation by their Lordships that –-

“Selling the Mill at a lesser price than the

assessed value amounts to malafide, capricious and

unreasonable exercise of power.”

34.In another citation reported in 2010 (5) ALT 217, between

C. Rayan Babu Vs. B.K.L. Tranders rep. By its Proprietor and

another, wherein it was observed that –--

“it is a material irregularity in conducting the

sale which could vitiate the sale warranting

interference to set aside the sale.”

35.The observations by their Lordships in the above case law which reiterates the fundamentals in the procedure to conduct sale when noticed any fraud, the same would vitiates the sale. Coming to the case on hand, here no evidence on behalf of the plaintif to show the procedure that was adopted by the plaintif bank to conduct sale following the norms which is not malafide and unreasonable in order to 36 substantiate its case for the relief of recovery of amount. When the evidence of D.W.2 and the documents under Exs.B1 to B3 are all show the value of the Mirchi as on the date of alleged auction was between

Rs.5,500/- to Rs.8,000/-, it is for the plaintif to explain how they could get only Rs.2,89,825/- from the 1st claim and Rs.3,83,946/- from the 2nd claim for the total 188.90 quintals of Teja variety.

36.In this context, it is also relevant to refer the improved contention of the plaintif while arguing the matter that due to power fluctuation and the other unforeseen circumstances may result the depreciation of quality and quantity of the pledged stock in the cold storage. The counsel for the plaintif wants to apprise the Court that the pledged stock that was kept in the 2nd defendant storage for a period of more than one year results the decrease of quality and quantity and that is the reason the auction amount was only of Rs.2,89,825/- from the 1st claim and Rs.3,83,946/- from the 2nd claim. But the said contention of the plaintif was refuted by the defendants contending that it is only a bogus auction and it results severe loss to the farmers and if really, the auction was conducted in accordance with procedure, there would be no loss at all. The contention of the defendants is worthwhile. There are no particulars about the auction and its procedure. There is no notice to the defendants either about the date of auction or place of auction before the alleged auction which shows the contravention of Section 176 of the

Contract Act. The plaintif bank not even ventured to produce the alleged auction register or the public notice or bidders list to prove its bonafides.

In the absence of any material on behalf of the plaintif bank, it is enough to infer that the plaintif bank has not followed the procedure to conduct sale of pawned articles and it is invalid, bad under law and not binding on the 1st defendant. Accordingly, this Issue is answered.

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Issue Nos.2, 3 and 5:

37.In view of the findings on Issue No.1, all these issues are also answered against the plaintif.

Issue No.4:

38.It is the case of the 1st defendant as a counter claimant that basing on the market value of the Teja Mirchi which are the pledged goods

before the plaintif bank under Exs.A1 and A12 loan transactions, each

quintal of Mirchi by the date of auction is of Rs.8,300/- and if it is calculated with the total quintals i.e., 188.90 and after adjusting the alleged auction amount and the suit claim,still an amount of

Rs.5,59,274/- is due by the plaintif bank to the defendant. There is no whisper in the counter claim about the cause of action. Since the 1st defendant contends that the plaintif bank is due of amount to him, the burden is on the defendant in order to prove his contention. Here the 1st defendant as D.W.1 and his side witness who is Selection Grade

Secretary as D.W.2 were examined to substantiate the contention of the 1st defendant. He was cross-examined by the counsel for the plaintif, wherein he denied the entire contention of the plaintif when tried to elicit through him about his liability as alleged in the plaint. The counsel for the plaintif also tried to elicit the power fluctuation in the cold storage and its improper maintenance may reduce the quality and quantity of the pawned articles. D.W.1 admitted that he committed default in payment of loan and the plaintif bank by selling the goods realized the amount towards part of the loan transaction. It was also elicited about the contents of the statement of account and the outstanding due which are all not known to the witness.

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39.In this context, it is also relevant to refer the submission of the counsel for the plaintif when relied upon the citations reported in various journals wherein the observation by their Lordships that when the borrower disputed the sale and notice has paid the money or redeemed the liability, he has the options to file the suit for redemption or the suit for damages. By referring the settled ratio, the counsel for the plaintif submits that the counter claim is not maintainable since the 1st defendant has not initiated the appropriate actions following the provisions of Indian

Contract Act. It is relevant to refer the observation submitted by the counsel for the plaintif reported in SA.No.674/1996, dt.6.4.2010, between Sri K.V. Sohan Vs. Sri D. Krishna wherein the observation by their Lordships that –-- “In a case where debt is still in outstanding, the remedy available to the appellant is two folder assuming that the bank has illegally sold the property, the remedies available are (1) to sue for redemption (2) to sue for damages for conversion.

Their Lordships also referred the page No.74 in

Halsbury’s Laws of England, Fourth Edition

wherein it is mentioned as follows:

“Actions for recovery by pawnor. A pawnor

cannot maintain an action for conversion against a

pawnee for the pledge unless the pawnor has a right

to its immediate possession, consequently until tender

or payment of the debt the pawnor cannot generally

maintain an action for conversion of the pledge. A

pawnor may sue a pawnee who refuses to restore the

pledge after tender of the debt, but if the ownership

of the pledge is in doubt, the refusal if made

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reasonably and to obtain a reasonable time for the

purposes of investigation, will not ground such an

action. In similar circumstances, the assignee of a

pawnor may bring an action for conversion, and may

recover for damages for non- delivery.”

40.In another citation reported in AIR 1960 AP 272, between

Narasayyamma Vs. Andhra Bank, wherein it was held that –-

“In case of an unauthorized sale by a pledgee

the relief that the pledger can seek is to file a suit for

redemption by depositing the money, treating the sale

as if it had never taken place, or where the suit for

redemption is not filed, to ask for damages on the

foot of conversion. A mere suit for declaration that

sale of certain shares is contrary to law and did not

affect the right of the pledgor to redeem the pledge of

the shares with an ancillary relief for injunction

restraining the company from registering the shares

in the name of the purchasers is not maintainable.”

41.The observation by their Lordships when applied to the case on hand, here the 1st defendant who admittedly not repaid the amount neither approached for redemption nor for damages under conversion.

The 1st defendant who got filed the counter claim not even whispered the alleged cause of action even to consider the prayer. There is no computation how he could arrive the amount as mentioned in the counter claim, when disputed the alleged auction and the amount realized in the alleged auction which is the basis for his claim. There is no evidence through the 1st defendant about the condition of Mirchi by the date of the alleged auction in order to claim the amount at the rate of Rs.8,300/- per quintal basing on the market value. Mere producing the price list of the 40

Market yard is not suffice to claim the amount at the rate of Rs.8,300/-.

The 2nd defendant storage when maintaining all the relevant registers to show the quality of the pawned articles during their custody, it is for the 1st defendant to place all the relevant material in order to substantiate its contention that the pledged goods were in good condition by the date of auction and he could get Rs.8,300/- per quintal if at all auctioned properly. In this context, here it is also relevant to refer the citation reported in 1946 BOMLR 828, between The Official Assignee Vs.

Madholal Sindhu, wherein the observation by their Lordships that the

Principles which I deduce from these decisions are (1) that although the pledgee may sell the goods unauthorizedly or unlawfully, the contract of pledge is not put an end to and the pledger does not become entitled to the possession of the goods pledged without tendering the amount due on the pledge; or, in other words, without seeking to redeem the pledge; and (2) that without a proper tender of the amount due on the pledge, the only right of the pledger in respect of an unlawful or unauthorized sale is in tort for damages actually sustained by him. In fact, in none of these cases, the pledger instituted an action for redemption and therefore, the question whether he had the right to redeem or not was in terms never decided. If anything, these decisions lead one to the inference, especially the case of Donald Vs. Suckling, that if a proper redemption suit had been filed, there would have been no answer to such an action if the sale was not a lawful one. The observation by their Lordships is similar to the ratio referred in the preceeding paragraphs relied by the counsel for the plaintif. In the absence of any material and cause of action, it is not just and appropriate to allow the prayer merely basing on the price list exhibited through D.W.2.In view of the above discussion, since the 1st defendant failed to approach the Court for appropriate relief, this Issue is also answered against the 1st defendant.

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Issue No.6:

42.In view of the findings on Issues 1 to 5, the suit is liable to be dismissed, so also the counter claim is also liable to be dismissed and each party has to bear their own costs.

43.In the result, the suit is dismissed.

In the result, the counter claim is also dismissed.

In the circumstances, each party do bear their own costs.

Typed to my dictation by the Stenographer Grade-III, corrected and

pronounced by me in the open Court on this the 28th day of OCTOBER, 2022.

Sd/- Sunkara Sridevi,

PRINCIPAL SENIOR CIVIL JUDGE,

NARASARAOPET.

APPENDIX OF EVIDENCE

Witnesses examined

For Plaintif:-For Defendants: -

P.W.1 : S. Chakravarthy. D.W.1 : Gattineni Chandraiah. (Branch Manager of plaintif Bank) (1st defendant) D.W.2 : Isireddy Venkateswara Reddy. D.W.3 : Pentela Narayana Murthy (3rd defendant).

DOCUMENTS MARKED

For Plaintif:-

Ex.A1/--:Loan Application, dt.13.4.2011. Ex.A2/--:Lien Marking acknowledgment, dt.13.4.2011. Ex.A3/--:Demand promissory note dt.13.4.2011. Ex.A4/--:Undertaking -cum-Take delivery letter, dt.13.4.2011. Ex.A5/--:Arrangement letter, dt.13.4.2011. Ex.A6/--:Cold storage receipt demand loan control card, dt.13.4.2011. Ex.A7/--:Demand notice, dt.12.11.2013. Ex.A8/--:Legal notice, dt.20.12.2013. Ex.A9/--:Acknowledgment card. Ex.A10/--:Postal receipt, dt.26.12.2013.

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Ex.A11/--:Computerized statement of account. Ex.A12/--:Loan application, dt.25.4.2011. Ex.A13/--:Lien Marking acknowledgment, dt.25.4.2011. Ex.A14/--:Demand promissory note dt.25.4.2011. Ex.A15/--:Undertaking -cum-Take delivery letter, dt.25.4.2011. Ex.A16/--:Arrangement letter, dt.25.4.2011. Ex.A17/--:Cold storage receipt demand loan control card, dt.25.4.2011. Ex.A18/--:Demand notice, dt.9.11.2013. Ex.A19/--:Legal notice, dt.20.12.2013. Ex.A20/--:Acknowledgment card. Ex.A21/--:Postal receipt. Ex.A22/--:Computerized statement of account. Ex.A23/--:Notarized copy of letter of conformation for creation of mortgage by deposit of title deeds, dt.17.4.2008 by the 3rd Defendant (Compared with original). Ex.A24/--:Notarized copy of letter of conformation for creation of mortgage by deposit of title deeds, dt.19.4.2008 by the 4th Defendant (Compared with original). Ex.A25/--:Notarized copy of Sale deed No.1293/2003 of Rangareddy district, dt.5.2.2003 (Compared with original). Ex.A26/--:Notarized copy of Sale deed No.3064/2000 of Samshabad, dt.30.9.2000 (Compared with original). Ex.A27/--:Notarized copy of Sale deed No.6535/2007 of Chilakaluripet, dt.15.12.2007 (Compared with original). Ex.A28/--:Notarized copy of Sale deed No.730/2006 of Chilakaluripet, dt.4.3.2006 (Compared with original). Ex.A29/--:Notarized copy of Sale deed No.10872/2005 of Sangareddy, dt.22.8.2005 (Compared with original). Ex.A30/--:Notarized copy of Sale deed No.2229/2006 of Chilakaluripet, dt.2.6.2006 (Compared with original). Ex.A31/--:Notarized copy deed of guarantee, dt.2.4.2011. Ex.A32/--:Notarized copy of representation, dt.26.9.2012 (Subject to objection). Ex.A33/--:Notarized copy of Board Resolution of 2nd defendant company letter, dt.12.3.2009 (Subject to objection). Ex.A34/--:Storage bond dt.10.4.2011 issued by the 2nd defendant. (Marked through the cross-examination of D.W.1) Ex.A35/--:Storage bond dt.15.4.2011 issued by the 2nd defendant. (Marked through the cross-examination of D.W.1) (Exs.A32 and A33 are de-exhibited)

For Defendants:

Ex.B1/--:Certified Copy of Market price of Sale proceeds of Chillies issued by Agricultural Market Committee, Guntur for the period 28.10.2012 to 14.11.2012. Ex.B2/--:Certified copy of the Price list of chillies issued by Market Yard committee, Guntur, dt.9.10.2015.

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Ex.B3/--:Certified copy of the Price list of chillies issued by Market Yard committee, Guntur, dt.17.12.2015. Ex.B4/--:Certified copy of the certificate issued by the plaintif bank, showing the repayment of term loan by the 2nd defendant dt.26.8.2015. Ex.B5/--:Certified copy of Statement of account of the 2nd defendant for the period from 17.4.2008 to 13.8.2015. Ex.B6/--:Certified copy of information furnished by the plaintif bank to the 3rd defendant under Right to Information Act, dt.19.9.2017.

Sd/- Sunkara Sridevi,

P.S.C.J,NRT.